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37th PARLIAMENT, 2nd SESSION

Standing Committee on Government Operations and Estimates

EVIDENCE

CONTENTS

Wednesday, May 14, 2003

1545

The Chair (Mr. Reg Alcock (Winnipeg South, Lib.))

Mr. Yvon Godin (Acadie—Bathurst, NDP)

The Chair

1550

Mr. Robert Lanctôt (Châteauguay, BQ)

The Chair

Mr. Robert Lanctôt

The Chair

1555

Mr. Yvon Godin

The Chair

Mr. Tony Tirabassi (Parliamentary Secretary to the President of the Treasury Board)

The Chair

1600

The Chair

Mr. Tony Tirabassi

The Chair

Mr. Robert Lanctôt

The Chair

Mr. Robert Lanctôt

The Chair

1605

Mr. Paul Szabo (Mississauga South, Lib.)

The Chair

Mr. Robert Lanctôt

The Chair

Mr. Robert Lanctôt

Mr. Paul Szabo

Mr. Robert Lanctôt

Mr. Paul Szabo

Mr. Robert Lanctôt

The Chair

Mr. Tony Tirabassi

Mr. Michel LeFrancois (General Counsel, Human resources Modernization task Force)

The Chair

1610

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Canadian Alliance)

The Chair

Mr. Paul Szabo

The Chair

Mr. Robert Lanctôt

The Chair

Mr. Paul Szabo

1615

Mr. Paul Forseth

Mr. Paul Szabo

Mr. Paul Forseth

Mr. Paul Szabo

John Mooney (Legal Counsel, Human Resources Modernization Task Force)

Mr. Paul Szabo

The Chair

Mr. Paul Forseth

The Chair

1620

Mr. Larry Bagnell (Yukon, Lib.)

Mr. John Mooney

Ms. Yvette Aloisi (Director General, Human Resources Modernization Task Force)

Mr. Paul Szabo

Mr. Paul Forseth

The Chair

Mr. Roy Cullen (Etobicoke North, Lib.)

Mr. John Mooney

Mr. Roy Cullen

Mr. John Mooney

Mr. Paul Szabo

The Chair

Mr. Paul Forseth

Mr. Paul Szabo

Mr. Paul Forseth

The Chair

Mr. Tony Tirabassi

Mr. Paul Forseth

The Chair

Mr. Paul Forseth

1625

The Chair

Mr. Paul Szabo

The Chair

Mr. Robert Lanctôt

The Chair

Mr. Robert Lanctôt

The Chair

Mr. Robert Lanctôt

Mr. John Mooney

Mr. Robert Lanctôt

The Chair

Mr. Tony Tirabassi

Mr. Ranald Quail (Deputy Minister and Head, Human Resources Modernization Task Force)

Mr. Paul Szabo

Mr. Ranald Quail

Mr. John Mooney

1630

Mr. Paul Szabo

Mr. John Mooney

Mr. Paul Szabo

Mr. John Mooney

The Chair

Mr. Tony Tirabassi

Mr. John Mooney

Mr. Tony Tirabassi

Mr. John Mooney

The Chair

Mr. Paul Forseth

Mr. Paul Szabo

Mr. Ranald Quail

Mr. Paul Szabo

Mr. Ranald Quail

Mr. Paul Szabo

Mr. Ranald Quail

Mr. Paul Szabo

1635

Mr. Ranald Quail

Mr. John Mooney

Mr. Paul Szabo

Ms. Monique Boudrias (Assistant Deputy Minister, Human Resources Modenization Task Force)

Mr. Paul Szabo

Ms. Monique Boudrias

Mr. Paul Szabo

The Chair

Mr. Paul Szabo

The Chair

Mr. Paul Szabo

The Chair

1640

Mr. Yvon Godin

The Chair

Mr. Paul Szabo

The Chair

Mr. Paul Szabo

The Chair

Mr. Paul Forseth

The Chair

Mr. Tony Tirabassi

1645

The Chair

Mr. Tony Tirabassi

The Chair

Ms. Monique Boudrias

Mr. Paul Szabo

The Chair

Mr. Ranald Quail

Mr. Paul Szabo

The Chair

Mr. Ranald Quail

The Chair

Mr. Ranald Quail

The Chair

Mr. Paul Szabo

The Chair

Mr. Roy Cullen

The Chair

Mr. Paul Szabo

The Chair

1650

Mr. Roy Cullen

The Chair

Mr. Roy Cullen

Mr. John Mooney

The Chair

Mr. John Mooney

The Chair

Mr. Paul Szabo

Mr. John Mooney

Mr. Paul Szabo

Mr. John Mooney

Mr. Paul Szabo

Mr. John Mooney

The Chair

Mr. John Mooney

The Chair

Ms. Carolyn Bennett (St. Paul's, Lib.)

Mr. Paul Szabo

Mr. John Mooney

Mr. Paul Szabo

The Chair

Mr. Tony Tirabassi

1655

The Chair

Mr. Paul Szabo

The Chair

Mr. Paul Szabo

Mr. John Mooney

The Chair

Mr. Paul Szabo

The Chair

Mr. Paul Szabo

The Chair

Mr. Paul Szabo

The Chair

Mr. Paul Forseth

Mr. Paul Szabo

The Chair

Mr. Paul Szabo

1700

Mr. John Mooney

Mr. Paul Szabo

Mr. John Mooney

Mr. Paul Szabo

Mr. John Mooney

1705

The Chair

Mr. Larry Bagnell

Mr. John Mooney

Mr. Larry Bagnell

Mr. John Mooney

Mr. Larry Bagnell

The Chair

Mr. Roy Cullen

Mr. John Mooney

The Chair

Mr. Paul Forseth

The Chair

Mr. Paul Szabo

The Chair

Mr. Paul Szabo

1710

Mr. John Mooney

The Chair

Mr. Paul Forseth

Mr. John Mooney

Mr. Paul Forseth

Mr. John Mooney

1715

Mr. Paul Forseth

The Chair

Mr. Paul Szabo

1720

The Chair

Mr. Robert Lanctôt

The Chair

Mr. Paul Szabo

The Chair

Mr. John Mooney

The Chair

Mr. Paul Szabo

1725

The Chair

Mr. Paul Forseth

The Chair

Mr. Paul Szabo

The Chair

Mr. Paul Szabo

Mr. Roy Cullen

Mr. John Mooney

Mr. Roy Cullen

Mr. John Mooney

Mr. Roy Cullen

The Chair

Mr. Yvon Godin

The Chair

Mr. Yvon Godin

The Chair

1730

Mr. Robert Lanctôt

The Chair

CANADA

Standing Committee on Government Operations and Estimates

NUMBER 042

2nd SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, May 14, 2003

[Recorded by Electronic Apparatus]

¹ (1545)

[English]

The Chair (Mr. Reg Alcock (Winnipeg South, Lib.)): Let us come to order.

I would like, before we move directly into clause-by-clause, to bring members' attention to a couple of things.

I would not want to presume upon the work of this committee, but is it at least theoretically possible that we could conclude clause-by-clause on this bill by 5:30 p.m.? If we do so, then I would propose we not meet again until we come back after the recess.

You have all been sent a document, which was approved, dealing with estimates. Our meeting on the first Monday back is with Treasury Board officials. The President of the Treasury Board, and I believe the secretary, are in to discuss Treasury Board estimates.

That is the final week for estimates, so we need some time to pass the estimates that are referred to us. We have a second session on the Tuesday, and there has been some discussion on the choices we have to make as to whom we might call. We need to make some decisions on that now in order to give the clerk time to invite people.

I saw a couple of options there, which I'll come back to in a second. All I want to do at this point in the meeting is deal with things on which we have consensus. If there's any discussion or debate, I will postpone it until the end of the session.

I would also remind members that the Clerk of the Privy Council, when he was giving testimony on this bill, indicated there were three other pieces to the modernization of the public service that he wanted to speak about, and he offered to come back before us and discuss those. So one of my questions is, would the committee like us to call the Clerk of the Privy Council before the House rises in June to hear from him on those other aspects of the modernization?

Some hon. members: Agreed.

The Chair: Okay.

I have a letter here, which I am not able to circulate because it has come to my office in only one official language, but if I can bring it to people's attention. You will recall that during the reviews of the supplementary estimates there was a motion passed in committee in which we requested certain information from the Privacy Commissioner and the Information Commissioner. A portion of that information was supplied. The chair then, upon the intervention of Mr. Bryden and with the support of the committee, wrote a letter to the Privacy Commissioner requesting the remaining information. I have a response from Mr. Radwanski. Strangely enough, it's only in one language, so I have asked the clerk to have it translated and it will be circulated to members as soon as it's translated.

I think the letter speaks for itself. Needless to say, he is not being energetic in complying with our request.

So I have a response, which is currently in translation. As soon as I have it back, I will circulate it to members. The clerk assures me we can get the response back in time, and we'll see if there's a willingness to deal with that letter at the end of this meeting. So I would ask you to hold some time for that.

There were a couple of issues raised during clause-by-clause that I would like to simply comment on.

I think, Mr. Godin, one of these concerns was raised relative to one of your amendments that was ruled out of order, although it might have been Mr. Lanctôt's--I forget. The question was, if the table vets amendments that parties put to bills, would they not catch the fact that it was out of order and interact with the member in order to try to facilitate an improvement of the amendment before it comes to the committee?

Am I correct, Mr. Godin? Were you involved in that discussion?

[Translation]

Mr. Yvon Godin (Acadie—Bathurst, NDP): No, I was not involved personally but I am aware that the same thing happened with the Bloc Quebecois amendment on whistle-blowers. That was a pretty substantial amendment to the bill and a lot of work had been put into it. Had it been caught faster, it would not have been necessary to—

[English]

The Chair: I met with the deputy clerk this morning and a number of officials to talk about a number of these issues. I'm informed that there is indeed a problem that is a new problem in the House. It arises from a concern that was raised by some parties--it was under the tenure of Speaker Parent--where the past practice had been for the clerks who drafted and the clerks who prepared for the committees to collaborate and to share the text, really for matters of form. But there was a concern raised about the potential for collusion and about solicitor-client privilege. There were a number of debates. I was not part of them, but I'm told they took place in the final portion of Speaker Parent's term. As a result, there was a decision made to sever those relationships, so some of that does not take place any more. As a result, we do end up getting caught in these conflicts, but it was at the request of opposition members that it not take place. So we are kind of caught with this, and it may be something we want to look at in the future.

Similarly, I had a conversation with Mr. Szabo about some of the concerns about the structure of this bill. There is, I think, an interest in the committee having a look at this question of how you present bills to the House. I was provided with some information that in the first session of this Parliament there were 61 bills dealt with by the House; four of them contained clauses that were acts within acts. In the current session there have been 36 bills put before the House so far, and four of them, again, contain acts within acts, this one being the largest.

Concerns, apparently, have been raised about this by two other committees. If there was an interest on the part of the committee to dealing with the structural issues of the bill, not relative to this specific bill but these questions that come up in terms of the operation of the committee, there would certainly, I believe, be some interest on the part of the table for that. But that is something the committee will have to consider.

I think that is sufficient to get us going.

Mr. Lanctôt.

¹ (1550)

[Translation]

Mr. Robert Lanctôt (Châteauguay, BQ): Since this committee was first struck, I have asked each time I have had the opportunity to do so, when are we going to look at the possibility of amending the Access to Information Act. Have you already given some thought to the timeframe?

[English]

The Chair: Thank you, Mr. Lanctôt. I did indeed have a discussion with the access to information commissioner this morning. I have had an earlier meeting with him where he referenced a portion of his last report in which he talks about the need for a House committee to pick up on that review. He's most anxious for us to do that.

I think the committee would be quite prepared to entertain a motion, if a member felt interested in pursuing that. Perhaps you and I can talk about a process for that. One of the things I would ask you to do, though, is to maybe meet with the researcher, because it takes some planning and structure if we want to do it properly. But certainly there's a great deal of interest on his part, and I think you'll find interest around the table in doing that.

[Translation]

Mr. Robert Lanctôt: I will certainly be proposing a motion or, if the government wished to do so, I would appreciate that. I know there was a kind of subcommittee of a standing committee that started to look into this. I think my colleague, Claude Bachand, now on the Standing Committee on National Defence and Veterans Affairs, was on it. I could find out about that. At any rate, something was begun on it. We could ask him how far the Members got, and how we could get the thing back here to the Standing Committee on Government Operations and Estimates to check on it.

[English]

The Chair: I think we should have a conversation also, Mr. Stilborn, and you could coordinate some of that for us.

I'm sorry, I did miss one other item. In the bills we have before us, just so I get situated here, we have all of the clauses that weren't carried, which run from, I believe, clause 208 on. We stood a series of clauses--five clauses that were relative to the headings--and we have a few amendments left to deal with. I believe Mr. Szabo has a number of questions he would like to ask.

On the issue of the clauses that affect headings, I had a meeting with the table again this morning on this question. They reviewed with me the situation we are in. When we come to those clauses, perhaps we can run through that in more detail, although the recommendation remains largely unchanged. So why don't we proceed.

What I might recommend, Mr. Szabo, is this. In the order of things, clause 12 is standing right now. I would suggest we proceed with the clauses where there are no amendments or any indications thus far of questions and then we'll come back to clause 12 and deal with your questions.

All agreed?

Some hon. members: Agreed.

The Chair: To refresh everybody's memory from that exciting session last night, the very last act of the committee was to pass government amendment 20.2, which is an amendment to clause 208. However, we did not pass clause 208 as amended.

(Clause 208 as amended agreed to on division)

The Chair: For clauses 209, 210, and 211, no amendments or questions have been registered. Can I deal with those three clauses together?

Some hon. members: Agreed.

(Clauses 209 to 211 inclusive agreed to on division)

The Chair: The next clause, 212, has been stood, and we'll come back to that. It's one of the heading clauses.

(Clause 213 agreed to on division)

The Chair: Now we go from clauses 215 to 224 inclusive--again, a group of clauses on which I received no amendments or indications of questions. May I deal with them together?

Some hon. members: Agreed.

(Clauses 215 to 224 inclusive agreed to on division)

The Chair: Now we come to clause 225. I see a government amendment 20.3 standing against that clause and it is located on page 163.3 of the big package.

(On clause 225--Replacement of “Public Service”)

¹ (1555)

Mr. Yvon Godin: No, that's amendment 120 from the Bloc.

The Chair: We do have this competing package problem. They will get you a copy, Mr. Godin.

This is one of these incredibly substantive clauses that will change the nature of the bill if it's not passed.

Mr. Tirabassi, would you like to move government amendment 20.3?

Mr. Tony Tirabassi (Parliamentary Secretary to the President of the Treasury Board): So moved, Mr. Chair.

The Chair: Okay. Any questions?

(Amendment agreed to on division) [See Minutes of Proceedings]

(Clause 225 as amended agreed to on division)

(On clause 226)

º (1600)

The Chair: That takes us to amendment G-21.

Mr. Tirabassi.

Mr. Tony Tirabassi: I would so move G-21, Mr. Chair.

The Chair: I think this is a relatively small clean-up.

(Amendment agreed to on division)

The Chair: Mr. Godin, you're opposed to punctuation.

(Clause 226 as amended agreed to on division)

The Chair: I have received no notice of amendments or questions for clauses 227 to 252 inclusive. I will just take a second here because we might actually be able to get further than that. I can go all the way to clause 286--clauses 227 through to 286.

I have notes that five of these clauses are consequential to earlier clauses in the same block, so we can deal with them as a block because they would be deemed passed anyway. Do I have your permission to deal with them as a block?

Some hon. members: Yes.

The Chair: Thank you.

(Clauses 227 to 286 inclusive agreed to on division)

The Chair: That brings us to clauses that are stood. Just give me one minute here, please.

If I may draw your attention to clauses 4, 33, 183, 212, and 214, these five clauses add headings to parts of the bill. You will recall a lengthy discussion on this in earlier meetings. This is one of these....

Yes.

[Translation]

Mr. Robert Lanctôt: Yesterday you voted in favour of clause 183. It was not stood. It was included in the block that went up to clause 184 and you voted in favour of it.

[English]

The Chair: Yes, thank you, except that we dealt with the Bloc.... You're right, that included clause 183, but we had also stood that clause prior to doing that.

[Translation]

Mr. Robert Lanctôt: We had already done that?

[English]

The Chair: We had passed the motion standing clause 183. Now it's true that we did call a block that included up to clause 184 because of a typo in the sheet here.

So I am at your disposal.

º (1605)

Mr. Paul Szabo (Mississauga South, Lib.): It appears that we passed clause 183 inadvertently, and what we should do is reopen it and call the vote again, please. I move to reopen clause 183.

The Chair: Agreed?

[Translation]

Mr. Robert Lanctôt: No.

[English]

The Chair: I believe we need unanimous consent to go back to a clause.

[Translation]

Mr. Robert Lanctôt: You will not get it.

[English]

Mr. Paul Szabo: The heading problem, you understand--it's one of those headings. It was a--

[Translation]

Mr. Robert Lanctôt: They wanted to speed things up, while I had asked to proceed carefully. We ran until a little past midnight and there was a desire to move quickly. That is not a problem for me, but I will not give consent because it was done quickly, when I knew very well we would have time today. Look how I am working today; I don't even need to follow. I will not consent to that.

Mr. Paul Szabo: I understand.

Mr. Robert Lanctôt: I respect you as you have respected me during the examination of this bill. Now it is my turn.

[English]

The Chair: Yes. One exercises what authority one has. We'll get a ruling on how we may proceed with that. In the meantime--

An hon. member: What are we going to do about all these titles?

The Chair: Who knows? Yes, there may be other ways...well, I'm told at the report stage it won't appear, which is one of the oddities of the situation we are in.

Let me draw your attention then to clauses 33, 183, 212, and 214, which are standing. These four clauses all do the same thing, that is, they add a heading.

The debate as I understand it, after rather lengthy conversations with the table this morning, goes like this. There has been an indication by the Supreme Court in a case involving the charter that the heading of a section of a bill needed to be considered in interpreting the section. As a result, the Department of Justice has advised the Privy Council Office in the drafting of this bill that in certain sections, headings need to be inserted by vote of the committee. However, the table takes the position that headings are not amendable and therefore not dealt with by committees. The problem is this. It is the responsibility of the House to create law. If you cannot amend or deal with the item before you, then how can you take responsibility for the law you're being asked to create?

The advice remains the same--that these should be defeated. It is noted that the environment committee, in dealing with a similar issue, did exactly that--defeated the clauses. But the committee can deal with this. The committee could choose to pass these if it felt it was in their best interests or something they wished to do.

Yes, Mr. Tirabassi.

Mr. Tony Tirabassi: Mr. Chair, if I may entertain some input from Mr. LeFrançois on this particular point, he may have something perhaps more recent.

Mr. Michel LeFrancois (General Counsel, Human resources Modernization task Force): Mr. Chairperson, it remains the position of the task force, from the advice it received, that these clauses need to be dealt with by this committee. In the absence of acceptance of these clauses, the headings we're referring to would not exist in the amended legislation. To reiterate the reason for this, it's our view, and I know, as you've indicated, sir, that it's not the view of everyone, that headings, as opposed to marginal notes, are indeed part of the legislation to the extent that they're part of the drafting process and they're of assistance in providing the intended meaning to legislation.

That leaves us in a quandary, sir, because the advice we've had--again, rightly or wrongly--is that if this committee does not vote these clauses as part of the bill, we must resort to another legislative tool to add these headings, and that would be unfortunate, in our view.

The Chair: Thank you.

As noted, there is a straight-up difference of opinion between the advice given by Justice lawyers on this bill and the advice given by the table officers of this House on the appropriateness of it.

Mr. Forseth.

º (1610)

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Canadian Alliance): Thank you, Mr. Chair.

It is the duty of this committee and parliamentarians to pass law that is understandable, that can be interpreted--and for it to be a good law, that can be interpreted reasonably. The reality is, how many times have I been in a courtroom and watched counsel not only argue on the clauses of a statute, but also use the title for interpretation and meaning. That is the reality of the courts across the country, that titles of sections are used in litigation as much as a substantive clause--not the marginal notes, but the courts have taken attention in case after case on the titles.

So like it or not, in view of all the litigation across the country, and in the Supreme Court of Canada, titles are being litigated over and used as part of the argument on one side or the other as to what the statute really means, what the intent is, and so on. That is the case, and because of that, whether we like it or not, I think we are duty bound to make good law that can be interpreted by the courts.

So we should pass the titles as suggested.

The Chair: Mr. Szabo.

Mr. Paul Szabo: Mr. Chairman, there is no doubt people who have no other arguments will revert to sidebars or whatever, but the fact is, not only do they have the opportunity to consider the titles, the sidebars, and all the other non-clause items, but they also have the opportunity to look at the testimony, etc., in Parliament, in the House and in committee. So if anybody were to be challenged on what a title meant, there certainly would be ample information for any good defence attorney to deal with.

We've spent far too much time on the heading thing. I personally respect the opinion of the table officers in this regard. We should just accept that as a position. If it's determined at some future date that this is inappropriate, then I think it's not only this bill that would be affected, but probably others, and they would have to be dealt with en bloc as an omnibus bill or something like that.

But until this is resolved, I think we have to make a decision. I think we really should get on with the other clauses, with the presumption that we're just going to follow the opinion of the table officers.

The Chair: Are there any other comments?

Shall clauses 33, 183, 212, and 214 carry?

[Translation]

Mr. Robert Lanctôt: No, not 183.

[English]

The Chair: I'm sorry, Mr. Lanctôt is correct.

Clause 183, which I had mentioned, is the one we have the problem with, so it's clauses 4, 33, 212, and 214.

(Clauses 4, 33, 212 and 214 agreed to)

Mr. Paul Forseth: We passed the titles.

The Chair: We passed all the titles.

(On clause 12)

The Chair: Mr. Szabo, did you have some questions on clause 12?

Mr. Paul Szabo: Thank you, Mr. Chairman.

I have quite a number of questions, but I think in the spirit...I want to deal only with those that I believe would yield a potential amendment to the bill. So I'm going to forego an opportunity to ask questions that may have spurred some discussion and possibly some other items that would have been useful.

I would like to deal with clause 12. If I can subsequently, in all my other questions, refer to the clauses of the bill within clause 12, the first one is proposed subsection 4(4).

I'm going to be using the black binder on the Public Service Employment Act. In proposed subsection 4(4), it says, “Commissioners shall not accept or hold--

º (1615)

Mr. Paul Forseth: Paul, can you take us through the tab and then--

Mr. Paul Szabo: In the bill as well?

Mr. Paul Forseth: And in the binder, so that we can....

Mr. Paul Szabo: Unfortunately, the pages are not numbered, but the clauses are sequential at the top. It's proposed subsection 4(4), right at the beginning. It's about five pages in.

For those who want to follow in the bill, Mr. Chairman, it is on page 116 of the bill. It's proposed subsection 4(4), which is within clause 12, as you understand. They embedded it. Are the officials with me?

The difficulty--and I think it would be appropriate to make a change--is with regard to the concept that commissioners cannot hold an employment position “that is inconsistent with their functions”. This is either the president or the other commissioners, who are part-time--the president is full-time and the others are part-time.

Anyone who is submitting a request or an application for consideration for a position as a commissioner has no idea what is meant by “inconsistent”. I suspect the courts may know, but nobody else knows what's inconsistent. If you look back under proposed section 91, your explanation on it was that it was to ensure there's no conflict of interest.

Conflict of interest as a concept is much more prevalent in our legislation. I believe we either define “inconsistent” in the bill or we change the word “inconsistent” to the words “are in conflict of interest”, or something appropriate that says any other activity would constitute a conflict of interest. I'd like the officials to agree--if you want to know it boldly.

I have a lot of questions, so could we do this quickly?

John Mooney (Legal Counsel, Human Resources Modernization Task Force): The concept of “inconsistent” is a bit larger than the concept of “conflict of interest”. “Conflict of interest” is more precise and more monetary: I have an interest in this, so if I have to decide an issue in which I will gain from my decision, there's a conflict of interest. “Inconsistent” is a bit larger. If you hold one position, if you're a commissioner....

Mr. Paul Szabo: Okay, I think you've answered the question: it's broader. I suggest to you it's so broad it's ambiguous; it's nebulous; and it gives nothing to anybody to hang on to. People need something to determine. Obviously a conflict of interest, whether it be a pecuniary interest or that I'm representing both sides of one issue--those are understood. Those are conflicts of interest.

“Inconsistent” could be.... Someone could argue a very, very fine point--so fine nobody would know whether or not it was a proper application.

I'm going to leave this issue, unless there are any other members at the table who want to either support--or not. I'll move on if there's no appetite on the part of the committee.

The Chair: I think there are a couple of other people who wish to ask questions.

Mr. Forseth.

Mr. Paul Forseth: Thank you.

I am somewhat sympathetic to what Mr. Szabo is saying. The word “inconsistent” does appear to be broad but rather vague. From their perspective, the public really wouldn't understand it. The whole issue here is public confidence.

We know what real or apparent conflict of interest is. There's lots of jurisprudence around defining in law what conflict of interest is, so we have a base in law to know what it means. I think lawyers would go crazy trying to define what is “inconsistent”--if there's jurisprudence on that word.

Mr. Szabo may want to let that idea cook a little bit, the proposal to replace the word “inconsistent” with--and my preferred wording would be--“real or apparent conflict of interest”. That's all I'll say on that at this time.

The Chair: Mr. Bagnell.

º (1620)

Mr. Larry Bagnell (Yukon, Lib.): I wonder if the staff--Mr. Mooney--could say whether this word has been used in other laws. Is it a standard legal term?

Mr. John Mooney: In professional codes, I think it's used--in some professional codes.

Yvette?

Ms. Yvette Aloisi (Director General, Human Resources Modernization Task Force): This is a standard use of legal terms for all these kinds of appointees who are part-time appointees, so you will find it in a lot of other pieces of legislation. As you may know as well, when a person is appointed by the Governor in Council they have an opportunity to discuss their position and what it means and that kind of thing, and they also have the conflict of interest code that applies to them that they will have to discuss. So they're not left without any advice or help when they are appointed, to answer some of the questions Mr. Szabo had previously.

Mr. Paul Szabo: Mr. Chairman, I have Bill C-13 that is currently at virtually the same position as this, and “inconsistent” is not used. In fact, it's quite specific: it refers to pecuniary interest, basically direct or indirect, and it's clear--and it's for the reader of the act, not for the courts. This term is vague, and I think for our purposes I would like to see this bill as vanilla as we can so that absolutely everybody will understand the intent.

I would second Mr. Forseth's motion, if he is prepared to move it, that the word “inconsistent” in proposed subsection 4(4) be replaced by the words “a real or apparent conflict of interest”.

Mr. Paul Forseth: I think they need some time.

The Chair: Mr. Cullen.

Mr. Roy Cullen (Etobicoke North, Lib.): I was just going to say that conflict of interest or a perceived conflict of interest is not easily defined, but it's reasonably definable. When you get into the word “inconsistent”, I'm just wondering.... If, let's say, a part-time commissioner also had a job in the other part of his or her life as a hardened criminal, or a belly dancer, or a stripper, would the court rule that this was “inconsistent” with their role as a commissioner?

Mr. John Mooney: That's what I mean. You find sometimes inconsistency in codes of conduct, and that's a good example.

Mr. Roy Cullen: It's in the context of a station in life and respect for the position, etc. I don't have any problem with that.

Mr. John Mooney: Being a stripper or.... It's a good example.

Whether it catches it or goes beyond it.... It's a larger consequence. It could capture things, as Mr. Cullen has said--but not necessarily so.

Mr. Paul Szabo: If you propose the motion, I'll second it.

The Chair: Just be careful. What's the motion?

Mr. Paul Forseth: I'm prepared to move, in proposed subsection 4(4), that the word “inconsistent”--

Mr. Paul Szabo: It's in clause 12.

Mr. Paul Forseth: All right, “4(4) in clause 12”--to replace the word “inconsistent” with the term “real or apparent conflict of interest”.

An hon. member: Or “a real ”; you need the article “a”.

The Chair: Are we clear on what's being moved?

Mr. Tirabassi.

Mr. Tony Tirabassi: Just as a matter of procedure, would it be fair to go to the next item and allow the department to consider the implications of what's being suggested here, and then come back to it in a vote?

Mr. Paul Forseth: I put it on the table now, “a real or apparent conflict of interest”, and we could stand it for a few minutes and go on to the next point.

The Chair: Let's just hold on. First, a motion has been made. Is everybody clear as to the content of the motion?

The clerk is not. Could you read it one more time, please, Mr. Forseth?

Mr. Paul Forseth: Yes. In proposed subsection 4(4) of clause 12, the third line shall read: “activity, that is a real or apparent conflict of interest with their functions”.

º (1625)

The Chair: Is everybody now clear on the motion that has been moved?

There has been a recommendation that we stand the motion.

Mr. Paul Szabo: So it's in a real conflict of interest with their functions?

The Chair: Yes.

There has been a recommendation that we stand that temporarily while the officials are given some time to look at it.

Mr. Lanctôt, do you have a question on this particular motion or on a different point?

[Translation]

Mr. Robert Lanctôt: Yes, on the same motion.

[English]

The Chair: Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: I will wait until they are listening.

[English]

The Chair: Could I have the attention of the officials, please?

Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: I would like to hear a clear explanation on this, because I prefer “conflict of interest“ and “apparent conflict of interest”. Conflict of interest and incompatibility with a position are not the same thing. It could be added instead of replacing it, because they are not at all the same thing. I would just like to get it straight, because this is different.

Mr. John Mooney: Yes, you are right. It is not at all the same thing. That is why I said it is a concept in the code of conduct.

We explained the meaning of “conflict of interest”. Now, for the term “incompatible”. If, for example, I were a part time commissioner and worked as a stripper in the evening, that might be incompatible. Indeed, it is not the same concept.

Mr. Robert Lanctôt: Exactly, and I am not sure that replacing it is preferable. It could be added, because it is something different. I would ask Mr. Forseth to make it into an addition, because it is not at all the same concept. As for the concept of conflict of interest, I totally agree that it must not be replaced. In my opinion, “incompatible”also needs to be there, because the person who is a commissioner will have to make decisions and carry out inquiries. There are, therefore, certain things that are really incompatible.

For example, if the person used cocaine and was a commission member, that would be incompatible. The person would not be in conflict of interest, but his or her cocaine use would be incompatible with the position. I think that this concept needs to be added, rather than putting it in in place of the other.

[English]

The Chair: Mr. Tirabassi.

Mr. Tony Tirabassi: Mr. Chair, Mr. Quail would like to respond to that, please.

Mr. Ranald Quail (Deputy Minister and Head, Human Resources Modernization Task Force): I have a couple of comments.

There is in place the Conflict of Interest and Post-Employment Code for Public Office Holders. The code is cited as the conflict of interest code.

In that particular one, the first part of that code, where we talk about those who are not full-time employees, there is a set of ten principles...and “Every public office holder shall conform to the following principles.”

So the code is in place, and in order to take on the commissioner's functions, you must conform with the following principles. The first one is ethical standards--I can read that out in detail if you wish; the second one is public scrutiny; the third one is decision-making; the fourth one is private interest; the fifth one is public interest; the sixth one is gifts and benefits; the seventh one is preferential treatment; the eighth is insider information; the ninth is government property; and the tenth is post-employment. There is a set-out in a paragraph underneath each one of those.

So if you've asked me to be a commissioner, I understand going in that I must “conform to the following principles”.

Mr. Paul Szabo: The conflict of interest principles.

Mr. Ranald Quail: That's correct.

All I'm really saying, though, Mr. Szabo, is that in terms of dealing with this and dealing with the draftspeople, we did take advice from draftspeople as to what was a better way to go at this particular issue. John has explained why we have the word “inconsistent” instead of dealing with “apparent conflict of interest”.

My only point in raising the principles is that we do have the conflict of interest issue covered, and the advice we got on drafting was that “inconsistent” is perhaps a better word for managing this particular clause.

Mr. John Mooney: There are precedents: in the Canada Transportation Act; in the Canadian International Trade Tribunal for their members; for the Immigration and Refugee Board; and another precedent in the Canadian Environmental Protection Act for review officers. So it has been used in other acts. As Mr. Quail said, it doesn't aim at the same principle.

That was in 1999, so it's very recent.

º (1630)

Mr. Paul Szabo: How would you characterize what “inconsistent” embodies that is over and above what you read in those details on conflict of interest? What specifically?

Mr. John Mooney: As in the example we gave before, I'm exaggerating just to illustrate the principle, but a part-time commissioner being a stripper at night would probably be incompatible.

Mr. Paul Szabo: So it is moral character or things like that, that you might think of. Some might not think it is a good idea, but it's not illegal to be a stripper, and it's certainly not a reason you would probably take him to court, if you denied someone an opportunity to have a job because he or she happened to be a stripper in a nightclub.

Mr. John Mooney: Yes. It's a matter of compatibility with the office. It would affect the credibility of the office.

The Chair: Is this a point at which to call the question?

Mr. Tirabassi, you had asked for a little more time.

Mr. Tony Tirabassi: So that I'm clear, what is the difficulty the department has, if any, with the amendment that's on the floor?

Mr. John Mooney: The National Energy Board, I've just been told, also has that.

Mr. Tony Tirabassi: What is the difficulty with the amendment that was put on the floor by either Mr. Forseth or Mr. Szabo, compared to what is in Bill C-25 currently?

Mr. John Mooney: One is larger. As I said, it is used for the members of the Canadian International Trade Tribunal and review officers of the National Energy Board.

It is a larger concept. “Inconsistent” is more demanding, and it catches things like credibility of the office.

They are not the same. I guess that's the point.

The Chair: Are you prepared to proceed?

I'm calling the question. Read the motion.

Mr. Paul Forseth: I might be advising people to vote against my motion, but anyway, it's that Bill C-25, in clause 12 on page 116, be amended by replacing lines 23 to 27 with the following:

activity, that is a real or apparent conflict of interest with their functions, and the President shall devote the whole of his or her time to the performance of the President's functions.

So instead of the word “inconsistent”, the new words are “that is a real or apparent conflict of interest”.

(Amendment negatived)

Mr. Paul Szabo: Mr. Chairman, I'm skipping over a few here. The second item is related to proposed subsection 4(7), which is on page 116 of the bill and carries on to page 117. It has to do with the oath.

Just for my edification, is there currently, or was there recently, a reference to Her Majesty the Queen in the oath in any of these acts?

Mr. Ranald Quail: There was a reference to the requirement to take the oath of allegiance. When you take the oath of allegiance, of course, it is to the Queen, so indirectly there was that reference.

Mr. Paul Szabo: That is in the current legislation, but the oath we're talking about in proposed subsection 4(7) has not been identified in your current wording as having anything to do with Her Majesty the Queen. Effectively, by this proposed subsection 4(7), you're excluding, first of all, any reference to the Queen. Is that true?

Mr. Ranald Quail: I will respond in this way. The bill makes no changes in any way to the Oaths of Allegiance Act. That is point number one. This issue of the oath of allegiance relates to the appointment under the proposed Public Service Employment Act.

Mr. Paul Szabo: So then your answer is no, proposed subsection 4(7) doesn't affect the Queen.

Mr. Ranald Quail: I'm assuming....

Go ahead, John, make the point.

Mr. Paul Szabo: This is a simple question. It's not a trick question.

º (1635)

Mr. Ranald Quail: I understand that, but we'd like to make a point of clarification.

Mr. John Mooney: This deals with the oath of the commissioners. There was no requirement in the bill that the commissioners have an oath of allegiance to the Queen.

Mr. Paul Szabo: Thank you. The answer is no, it doesn't affect the Queen.

But it does have a change with regard to where an oath is taken, to eliminate the opportunity to say the words “so help me God”. The change in proposed subsection 4(7) is eliminating the opportunity for anyone who is swearing an oath to say the words “so help me God”.

I believe, notwithstanding your explanation, by deleting the words “so help me God”, or at least the option to say “so help me God”, or other deity of preference, should someone include those words, in fact they would not be complying with the act in terms of swearing the oath. The oath is as defined.

Maybe I should leave it at that.

Is that the case?

Ms. Monique Boudrias (Assistant Deputy Minister, Human Resources Modenization Task Force): It's true we have deleted the phrase “so help me God” from the oath or solemn affirmation of office and secrecy. We did it in recognition of cultural diversity within Canada.

We believe by saying the very words “I swear” it's implicit you are swearing to the deity of your choice. It's not necessary to put it in. In recognition of Canada's cultural diversity--and it speaks to the values we have in the preamble of the act--we've deleted that phrase.

Mr. Paul Szabo: It's to respect the different religious beliefs, that there are differences, and that's true. But it's not to eliminate any reference to any religious...that's the question.

Ms. Monique Boudrias: That's correct.

Mr. Paul Szabo: Mr. Chairman, I want to propose an amendment. I understand the officials have already had this debate all through the whole deal, and the last position was that there would be provided, at the end of the oath, which finishes off with “the Public Service Commission”--and this is where you are making an oath--in brackets you would have the words “so help me God, or other preferred deity (optional)”. So should someone choose to say, so help me Allah or Buddha or God or Jesus, it still would constitute an oath in conformity with the act. They would not be told, as members of Parliament were when we swore in, prior to passing Bill C-408 recently--subject to Senate review--that we could not even pledge allegiance to Canada in discharging it. We were told we had to leave it out.

So I want to protect the opportunity for people to say it if they wish, and I'm hoping as a consequence of Bill C-408 and other things there will be an omnibus bill forthcoming that will address oaths in all of our legislation so we can deal with them.

But I would not be comfortable at all supporting this bill with an exclusion of the opportunity to take an oath, “so help me God”. I want that changed.

The Chair: Mr. Szabo, are you proposing an amendment?

Mr. Paul Szabo: I am.

The Chair: Let's get the amendment on the floor and then we can continue the discussion.

Mr. Paul Szabo: I move that in clause 12, proposed subsection 4(7), in the oath, after the word “Commission” we insert “so help me God or other preferred deity (optional)”.

The Chair: Let's get the motion moved and then we'll continue the discussion of the motion. Let's have something substantive to deal with.

I have Mr. Forseth and Mr. Tirabassi.

Mr. Lanctôt, did you wish to speak also?

Mr. Godin.

º (1640)

[Translation]

Mr. Yvon Godin: My only comment would be on the motion...

[English]

The Chair: It sounds like a good idea, but wait until we get the motion.

Mr. Forseth, Mr. Tirabassi, Mr. Godin, and Mr. Cullen.

Yes, Mr. Szabo.

Mr. Paul Szabo: Colleagues, I'd like to read the motion.

The Chair: Go ahead.

Attention, please.

Mr. Paul Szabo: I move that Bill C-25 be amended in clause 12 on page 117 by replacing line 6 with the following: “Public Service Commission, so help me God or other preferred deity (optional)”. And the intent is adding to the oath so that if you wish you can say, where an oath is being given, “so help me God” ,or “so help me” whatever deity is your religion, or you can say nothing. This whole thing is optional, but you can make it and still satisfy the requirement that you must swear the oath to the public service.

The Chair: Mr. Forseth.

Mr. Paul Forseth: Thank you.

I take it that the intent is somewhat to revert to the previous form with a nuance. It's interesting that I did receive correspondence on this point, and there were some national articles across the country in the papers on this issue. I ignored it, and I said in the House in my speech that really we needed a modern oath related to employment and that it's a workplace thing to do with honesty and loyalty to your employer. But I'm changing my mind at this point seeing that there is something out there that's resonating with the public that the oath here and throughout the bill in other spots should be equivalent to what is in the courtroom, and in the courtroom it's still “so help you God”, or whatever, or affirmation.

And you know how the public are. If there is a slight change, they impute, or bring, unnecessary arguments and say that this is the march of secular humanism, and so the arguments go. So why give ammunition to all of that stuff? There is such as thing as cultural social convention. For kids it's “scout's honour” or whatever. But the common oath that's available in the courtroom I think is the appropriate one, and Mr. Szabo's motion I think tries to reflect that.

Thank you.

The Chair: Thank you, Mr. Forseth.

Mr. Tirabassi.

Mr. Tony Tirabassi: Thank you, Mr. Chair. I'd like to refer to Ms. Pearce on that one, please. Would you like to offer some comments?

º (1645)

The Chair: Is the government for or against God?

Mr. Tony Tirabassi: We're for it. I speak for myself.

The Chair: Who's going to make the comments?

Ms. Monique Boudrias: I wanted to clarify a question or comment that Mr. Szabo made earlier, and that was, is the oath as drafted in Bill C-25 complete if someone wishes to say “so help me God”? It would be entirely up to the individual taking the oath; if they wish to add those words, they could. It would not affect the oath at all.

Mr. Paul Szabo: Can I make a couple of more comments?

The Chair: Mr. Szabo, let's....

Yes, Mr. Quail.

Mr. Ranald Quail: If we wish to proceed with this and add “and so help me God (or name of deity)”, there are actually four motions. There's not one; there are four.

There's one dealing with clause 12 on page 117. I think there's one on 12, page 133, but they all deal with the same thing.

Mr. Szabo, if you'd rather I didn't read this now, I'll stop if you want.

Mr. Paul Szabo: I'm going to ask for a consequential amendment, including clause 2.

The Chair: Mr. Szabo, Mr. Quail is indicating consequential amendments to this.

These would be amending other parts of the same bill to bring it in line with Mr. Szabo's amendment, right, Mr. Quail?

Mr. Ranald Quail: Right. So it's clause 12, page 117; clause 12, page 133; clause 12, page 148; and clause 19, page 165.

The Chair: And the impact on clauses is in clause 2.

Mr. Ranald Quail: Not with the four I have here.

So those were the four we had.

The Chair: May I raise a question? I realize we have the motion, but just for reasons of time, if these other four amendments are consequential to this motion, then shall we take them as a group? And should this motion pass, then the four consequential amendments shall be deemed to have passed? Is that agreed?

Some hon. members: Agreed.

The Chair: Mr. Szabo.

Mr. Paul Szabo: I have a question for the clerk. Often what happens is when a change is made, the instruction is that the bill shall be conformed to reflect that change. It's a general rule that wherever it appears.... It's something of an omnibus motion.

The Chair: The clerk says it is better to check that each change is the desired change. The officials have indicated that there are, in their opinion, four consequential amendments with this motion. We can deal with this motion, and if it passes they will each form separately, or we can deal with the whole package as one. What is the wish of the committee?

Mr. Szabo, that doesn't preclude you from finding other clauses.

So let's deal with that.

Mr. Cullen, you wish to make comments.

Mr. Roy Cullen: Yes, thank you, Mr. Chair.

In principle, I have no difficulty with what my colleague is trying to accomplish here, to have the optional opportunity to say this, “so help me God”. But the problem, as I see it, is that “so help me God” is a Christian expression, and I don't think a Muslim would say “so help me Allah”, and I don't think a Buddhist would say “so help me Buddha”. Frankly, I don't know what they would say. They might have another affirmation in terms of words. The Muslim might say inshallah, I don't know.

I was going to suggest, not to be too picky, that we have big parentheses, “so help me, God (or other optional affirmation)”, or something. You could even have an atheist, who might say, “so help me, chaos and anarchy”, whatever, I don't know. But to make the presumption that a Muslim would say “so help me Allah”--I don't think they would. It's not in their parlance.

The Chair: Mr. Szabo, have you heard Mr. Cullen's comments?

Mr. Paul Szabo: I do understand, and that's why I put the word “optional” in there, that you can say something or nothing without jeopardizing the assessment of whether or not you have made the proper oath.

The Chair: So “so help me” does not form part of the oath. The entire phrase is optional.

Mr. Cullen, does that satisfy your concerns?

º (1650)

Mr. Roy Cullen: I'm not a legislative guru, but I'm not sure it gives that precisely.

The Chair: The question is, the way this motion is worded, is it entirely optional? Is there anything that has been added in this motion through the oath that is part of the oath, or is this simply adding a flag after the oath that says, “enables you”, or “allows you”, or....

Mr. Roy Cullen: Mr. Chairman, my question is related. I would not want the legislation to say that you ought to have the choice of “so help me God”, or “so help me Allah”, or “so help me Buddha”, or “so help me....”. That doesn't make any sense.

Any kind of optional affirmation is fine by me.

Mr. John Mooney: Maybe I could help the debate.

The Chair: If I can just clarify, the clerk informs me that the amendment in its form is admissible, and the intent of the amendment is to do as you suggest, Mr. Cullen, that it be entirely optional. However, the clerk also instructs me that it is the officials who are better positioned to answer as to the probable impact.

Mr. Mooney.

Mr. John Mooney: The way it's structured in the bill, as it is today, you have the choice to take an oath, or a solemn affirmation for those who are atheists. So it starts out by saying, “I do swear (or solemnly affirm)”, so the choice is there as it was before.

The end, “so help me God”, can only apply once you make the choice of swearing. In other words, when you make a solemn affirmation, that cannot operate, so it has to be structured in a way that, as Mr. Cullen said, the person who doesn't want to swear and wants to make a solemn affirmation, obviously.... If the committee goes there, the end of the phrase has to be “ in the case of an oath”, and then there are these options, but it has to specify that, not to eliminate the choice that's at the beginning between an oath and a solemn affirmation. The beginning of the phrase is “I do swear (or solemnly affirm)”, for those who--

The Chair: Are there any further comments?

Mr. Paul Szabo: Yes. I think in this particular case, though, if someone were in fact swearing or affirming, not an oath but the affirmation, that even if they said “so help me God” at the end, that would not disqualify the validity of taking the oath. So it's moot.

Mr. John Mooney: Yes, but the idea of solemn affirmation is that you don't want to swear; you don't want any religious connotation.

Mr. Paul Szabo: Exactly. So there's no damage.

Mr. John Mooney: No.

Mr. Paul Szabo: The actual thing is there on the swearing. The only actual practice where a “so help me God” is in place is where an oath is taken.

Mr. John Mooney: All laws throughout Canada are structured to make sure that when you choose a solemn affirmation you don't have to link that “so help me God” to a religious thing. That's consistent throughout all the laws of Canada. The option only comes once you've made the first decision.

The Chair: Are there any further comments or questions?

Shall I call the question?

(Amendment agreed to on division)

The Chair: Mr. Mooney, do you have a question?

Mr. John Mooney: Could the clerk read the motion?

We've drafted an alternative if that could help the committee.

The Chair: Before I called the question on the motion, it might have been helpful to let us know that.

Ms. Carolyn Bennett (St. Paul's, Lib.): His motion is only for swearing, not for solemn affirmation.

Mr. Paul Szabo: But it's moot because it's an option in either case.

Mr. John Mooney: I think it's the wrong wording, if my recollection is good.

Mr. Paul Szabo: It's passed; we'll amend it sometime. I'd like to move on, Mr. Chairman.

The Chair: Mr. Tirabassi.

Mr. Tony Tirabassi: Mr. Chair, we all respect Mr. Szabo's point and support for his amendment and the intent. But as I tried to mention earlier, if we're going to have amendments, if I may suggest, I think it puts our department in a difficult position when the wording is being thought of by those in a non-legal profession, including myself. We get excited about such a motion, but at least give an opportunity to the legal people to look at the wording to see if they can better capture what is trying to be said by the committee.

It's impossible I think for the motion to be drafted up there and have these people respond without having a chance to look at it. That's the difficulty this creates.

º (1655)

The Chair: Members of committees are free to move amendments verbally, on the spot. We'll have to figure out how we deal with that. Had there been alternate wording available, it would have been nice to know that. We might have been able to incorporate that in the amendment that was being worked on.

So this issue has been dealt with.

Mr. Szabo.

Mr. Paul Szabo: There are, as Mr. Quail raised, three consequential amendments in this act.

The Chair: I believe he said four.

Mr. Paul Szabo: I think 117 is the oath itself, so it will happen in four places. We voted on the first one.

In a couple of those other places they do include even further statements after what's in the one we've had, which we have no problem with. But the motion we just passed can't be applied, so the clerk is checking those carefully. And, Mr. Chair, we will ask for a vote on the consequential amendments once the clerk has satisfied herself that the wording--

Mr. John Mooney: If I could clarify, the other oaths are not consequential in the ordinary sense of the word. What we dealt with is the oath of the commissioners. The other oaths are simply oaths of other people. One is the oath of the employees and the other is the oath of the members of the new tribunal. There are two others in this act and one--

The Chair: Let me deal with it this way. Let's see if we can untangle this mess in this fashion.

We agreed that if we passed this motion, we would deem the others passed.

Mr. Szabo, this is your motion; it has been duly passed. However, it is noted that there is perhaps a more acceptable form for it that achieves the same purpose. I think this committee is interested in having good legislation, not simply passing it for the sake of passing it. Would you be willing for us to revisit this item, looking at the text that the table has to perhaps get to the same result in a better fashion?

Mr. Paul Szabo: Absolutely, and I would suggest that the representative of the officials provide the clerk....

The Chair: How about this? Given that Mr. Szabo has agreed...actually it takes unanimous consent. Do we have unanimous consent to reopen?

Some hon. members: Agreed.

The Chair: Thank you.

Now, Mr. Mooney, or the appropriate official, perhaps you could confer with the clerk, and if you have a copy of wording that you think is preferable, let's do that.

Thank you, Mr. Szabo. I appreciate your willingness to do that. We'll look at that.

Let's move on to your next question, and then I'll call this back once we've got a text that everybody is more comfortable with.

Mr. Szabo, next.

Mr. Paul Szabo: I am on proposed section 13. I'm in clause 12 and proposed section 13, I guess it is. This is the problem with having an embedded bill. It's proposed section 13 of the Public Service Employment Act. How's that?

Mr. Chairman, in this clause it says that the commission--

Mr. Paul Forseth: I still don't know where you are.

The Chair: Could you give a page number, Paul?

Mr. Paul Szabo: Page 118. We're carrying on sequentially. We've changed the pages here. This is proposed section 13.

The Chair: Proposed section 13, page 118, yes.

Mr. Paul Forseth: Line 29?

Mr. Paul Szabo: I don't know.

The Chair: Yes, line 29 in the English and line 29 in French.

Mr. Paul Szabo: This subclause permits the commission--so the Public Service Commission--to delegate any of its authorities, powers, and duties to any commissioner, any one of them, the president or any of the part-time commissioners, however many they're going to be, or an employee of the commission.

I have a concern that the public service commissioners would delegate any of their authorities, except those included in sections 20 to 22, which is specified here, to an “employee of the Commission”, and then deem it to have been discharged by themselves.

I raise with you the language in Bill C-13, which the House is at third reading on, and in its subclause 32(1), it says “the board of directors”, or “the commission” in this case, “may, by by-law, delegate any of the Agency's powers and duties to a committee of the board or the President,” i.e. an officer, but never to an employee.

I must question the propriety of allowing the commission to delegate blanket authorities or duties, other than those that are included in sections 20 to 22, to an employee of the commission. This just seems bizarre.

» (1700)

Mr. John Mooney: Given the nature of the commission, the commission is an agency and it has powers, which obviously it can't carry out itself. Right now, for example, there are just two commissioners. For example, on the power to conduct investigations, there are hundreds of investigations a year, so obviously it's not the commission.

So the commission needs the power to give this to an employee. They have investigators, and the same is true for auditors. It needs that power because it can't do it all itself. What it does is it gives that power to investigators.

The other example under this act is it would have powers under the Inquiries Act, for example, to carry out investigations or audit.

Mr. Paul Szabo: May I interrupt you there, please? I don't believe for a moment that commissioners themselves go out and conduct investigations. It would be clearly contemplated that they would arrange for others who are trained, blah, blah, blah, to do those investigations. Investigating is not a delegated duty. There is a responsibility or an opportunity, but to suggest that commissioners themselves are going to do investigations is a stretch. Give me a better example.

Mr. John Mooney: But this allows everything the commission has to do to allow employees of the commission to do it. What the commission does--for example, it allows it employees to carry investigations on its behalf.

There needs to be a disposition that allows the commission to give that power to employees. Sometimes it tailors it. For example, for an investigation it will give a mandate to somebody to carry out an investigation, or for powers under the Inquiries Act it will say you have subpoena powers, but they don't have that power. They can modulate what it allows the employee to do on behalf of the commission.

This is a carry-over from the present act, and it's a flexible way of allowing the employees of the commission to do things on behalf of the commission, but leaving all the power with the commissioner, who of course....

Mr. Paul Szabo: I have to object. This is a delegation of duties and responsibilities. Getting people under your authority, direction, and control to physically do it is not a delegation. It is managing and getting those things to happen under your control.

But this says an employee can do the duties of a commissioner and...no, you said...well, maybe I'm mistaken.

Mr. John Mooney: It says that any power of the commission under this act may be exercised or performed by the commission or employee of the commission authorized by the commission. You have to be authorized by the commission. For example, proposed section 66 of this act says that the commission carries an investigation. The construct of this act is that the commission has this power. You need a provision that allows the commission to allow its employees to carry out something on behalf of the commission. You need some sort of tool, and this provision allows this. It's very flexible. The commission authorizes, for example, an investigation to carry it out. It could authorize with condition or without.

» (1705)

The Chair: Thank you, Mr. Szabo. I have a number of other intervenors.

Mr. Bagnell, Mr. Cullen, Mr. Forseth.

Mr. Larry Bagnell: Comparing it to Bill C-13 is like comparing apples and oranges. But could you tell me if this clause is significantly different from what was in the old act?

Mr. John Mooney: No, it's a carry-over. It's the same thing as the old act. The only difference--

Mr. Larry Bagnell: It worked fine in the old act.

Mr. John Mooney: Absolutely, yes. What the commission does is it authorizes people to act on its behalf with conditions or without conditions, because they have specified that certain functions of the commission are carried out by the commission. So you need a provision that allows the commission to do this on behalf of the commission. It has worked very well throughout the years.

Mr. Larry Bagnell: Thank you.

The Chair: Mr. Cullen and Mr. Forseth.

Mr. Roy Cullen: Thank you, Mr. Chair.

I think this kind of provision is needed. Let's say the Public Service Commission wants to go to a department to do an audit. There's some complaint about whether the department is applying the merit principle as is intended by this act. I think it gives an employee more credibility if they're able to have some letter where the commissioner has delegated the authority to go into the department to review the application of the merit principle. I think it adds more credibility. When you have someone from the Public Service Commission go to a department, the deputy minister might ask under what authority do you examine. The response can be, we're applying the merit principle as is intended by the act.

I've been involved in these things before, where you're asked to audit something and you get a letter. It's from the board or it's from the foundation. It means you have instant access and credibility and are not going to be challenged in terms of your mandate.

I have no problem with this at all. In fact, I think I would encourage it because we're going to have examples where departments and agencies are going to have to be reviewed and audited by the Public Service Commission to make sure they're applying the merit principle as was intended.

Mr. John Mooney: Without this provision, it is the view of the government that the employee will not have that authority. This is not like an employee doing a departmental function. This is a central agency function--an almost quasi-judicial function. The employee goes to another department and says he wants to investigate it. The department will ask what is his authority. You absolutely need this, because only the commission has the authority to investigate. For example, the Inquiries Act subpoena powers are very big powers. You absolutely need a provision that allows the commission to give this authority to somebody else. The deletion of this would be a problem.

The Chair: Excuse me, Mr. Szabo.

Mr. Forseth, do you have a question?

Mr. Paul Forseth: I was just saying that I used to be a public servant. I was by statute an officer of the courts of British Columbia, but I was also a peace officer. In order to work the paperwork through our office and have warrants of revocation for parole and so on, even our secretary had to be delegated a peace officer under certain circumstances in order to properly conduct the paper trail, to do the work of the office. I'm just saying that throughout the public service letters of delegation and designation within the powers from above are very commonplace and they work.

The Chair: In your view, this is essential?

Yes? Thank you.

Are there any further comments or question on this? We do not have a motion before us. This has just been questions.

I am at your disposal. Mr. Szabo, do you have any further questions?

Mr. Paul Szabo: If everybody leaves the bill open where we are, we can carry on. Proposed subsection 30(4) in that bill--

An hon. member: So did you withdraw?

Mr. Paul Szabo: I didn't make any motion. I asked the question.

The Chair: He was just asking questions. Proposed subsection 30(4), I note, is at line 10 on page 125: “The Commission is not required to consider more than one person”. Is that it?

Mr. Paul Szabo: This is a new provision; it will be in the new act. I raised this question and we didn't get a chance to get an answer, but it concerns me that the commission will be put in a position where it doesn't have to consider more than one person, notwithstanding that there might be 20 people who want to apply for a job, and someone could structure the appointments with people to ensure that their own person, or their preferred person, is the first one and then say, “Under the act I can just stop the whole process after I've seen one.”

This doesn't sound quite right to me. Maybe there's something I don't understand, and I'd like an explanation.

» (1710)

Mr. John Mooney: We touched on this issue yesterday. It's a very important part of the concept of the merit principle.

The clause does two things. The first thing it does is replicate the right today of the employer to make an appointment without competition. So in the act the employer can make an appointment without competition. Also it replicates the right to make individual promotions, for example, which the act does today. We want to make sure we're not taking away a flexibility that already exists in the act.

The second point, and it's probably more important, is to ensure that the courts don't read into the act that you necessarily have to have relative merit every time. This says merit doesn't mean you have to consider many candidates--as it is today: today you don't have to consider more than one candidate. Individual merit is still merit, and appointment without competition is still merit, and you're not really considering more than one candidate, strictly speaking.

It's an interpretation clause to make sure the courts don't come along with a regime where it's absolutely the relative merits. If you can look at just one candidate and it's still meritorious, then you can't say that to be meritorious you have to look at many candidates.

It doesn't mean that if twenty people apply for a position the law dictates how you're going to staff, whether on relative merit, individual merit, a combination of those, or something totally new. As I said yesterday, the commission is going to say, for example, “If you have a competition, obviously you're going to consider everybody.” You're not going to have a competition to have ten people and just consider one. That would probably be an abuse of authority, simply because it doesn't make sense. But the commission will deal with that; it will say in its policy: “When you have a competition, you have to consider everybody.”

But it's the commission that's going to do that. The law is not dictating how you're going to carry out the appointment process.

The Chair: Mr. Forseth.

Mr. Paul Forseth: Concerning the current wording, the explanation in your manual here says there is no similar provision in the current act. What you're saying is it's a protective clause that's been added so that you don't get the courts intervening.

Mr. John Mooney: Yes. There is no similar provision because it's structured differently. That's why the person who drafted it put it that way. But there is a provision in the act today that says you can make appointments without competition, which generally means you don't consider more than one person. It also says you can make individual merit appointments, which means you just consider....

So there are similar processes in the act today, but it's not constructed the same way.

Mr. Paul Forseth: I just think as a matter of communication--the PSAC union is getting excited over this provision and a bunch of others--probably what there needs to be is a comprehensive communication piece to explain clearly the intent of what's going on here, to forestall a lot of unnecessary trouble a lot of MPs are going to get in correspondence from constituents about what the bill says. We don't have any comprehensive explanation, because the whole issue of merit, and how it's going to work out, and the emotion we saw in Montreal of people coming to the microphone to speak against Bill-25, and the mistakes, or what the union may claim versus what you're claiming as to how it's going to operate--that's a whole minefield that needs to be dealt with mostly, I'd say, with a communication piece.

Mr. John Mooney: Yes, there's misapprehension. For example, theoretically today the commission could make all appointments without competition, because the act says you can make an appointment with or without competition. What happens, though, is they compare the person chosen to the appellant, if there's an appeal--but that's very ancillary.

Theoretically, right now the commission could appoint everybody in the public service without competition. And it has another way of just considering one person: theoretically, it could pass regulations saying everybody is appointed on individual merit, “so I'm just going to consider....” It actually has two ways now in the act to consider just one person, if it felt like it.

So it's a misapprehension to say this bill allows something that is not allowed now; it just structures it differently. But you're right, unfortunately there was a lot of confusion on this issue. It was presented as if the act now doesn't allow considering just one person.

» (1715)

Mr. Paul Forseth: I assume you will take note from my comments, and perhaps others, that you should try to come up with a communication piece in this whole area of how merit is going to operate. We talked about the PSC looking over the shoulders of deputy heads concerning how they set their criteria--that merit is going to be protected in that way--and the whole regime.

It's probably one of the most troublesome issues around this legislation. When you don't understand it, it undermines public confidence in what the government is trying to do to manage on behalf of the broad public interest.

The Chair: Mr. Szabo.

Mr. Paul Szabo: I have no other questions, and I'm not going to make a motion. If you wish, I will move on to my last item. This is one other item that requires attention.

I am on proposed section 118, which is on page 152 of the bill at line 34. I would indicate, Mr. Chairman, that I also have those four amendments that would have to be put with regard to the agreed upon amendment to the old--with regard to God. They can be done very quickly, and we can do them after we identify this.

Mr. Chairman, in proposed section 118--and we had a pretty extensive discussion yesterday on this, so we probably don't have to repeat all that was said--there is language that says the commission “may investigate any allegation, made to it by a person who is or has been a candidate in an election”, etc., that there's been a breach of some sort, that someone “failed to comply” with certain sections.

The discussion we had was that we don't know what level of election; we don't know how many elections you could go back--there are a bunch of details. Mr. Forseth outlined a broad range of issues, and I think the officials also clarified that there was some specificity--we were talking about federal elections, etc.

Proposed section 118 is incomplete, because it begs a bunch of questions. The suggested resolution of this is to delete the words “who is or has been a candidate in an election”--just delete all of that and leave it to “a person”. The argument is, if a person has direct knowledge of or an allegation of an apparent breach of any part of the act or the specified sections--it doesn't necessarily have to be a candidate; quite frankly, candidates are insulated from some of the strategic or background knowledge of what has gone on during a campaign--it was in the best interest of the public service and it was a constructive thing that, regardless of whether it was from a candidate or someone working on the campaign or someone who had direct knowledge, they be able to bring any allegation of breach forward.

If we crafted an amendment that simply said an allegation made to it by “a person”, and then made reference to regulations if you want to describe anything more, I don't think it's necessary, if the officials would be prepared to accept it, that any allegation made to it by a person that someone has failed to comply.... It really says we're open to input that would help us protect the integrity of the act.

» (1720)

The Chair: Mr. Lanctôt.

[Translation]

Mr. Robert Lanctôt: On a point of order, Mr. Chairman. I find it odd that we are back to discussing clause 118. Yesterday an amendment was presented by the Alliance, while I was unable to present my amendment, BQ-114 and thus generate discussion. Now you are discussing it today. Is it a matter of favouritism, or might it be that I do not understand how things work? I would like to have been able to introduce my amendment, BQ-114. Why continue a discussion that had already been started? I was not able to present my amendment because the Alliance amendment had been accepted. I would therefore like to ask that we stop and that I be allowed to present my amendment BQ-114.

[English]

The Chair: Thank you, Mr. Lanctôt.

To the best of my knowledge, Mr. Szabo has presented no amendment. He is simply asking the officials questions on clauses within clause 12, which he's entitled to do.

If you wish to address further questions or further amendments, you're more than welcome to do that also. It's a different issue between ruling an amendment in or out of order and the member's ability to ask questions, given the way this bill is structured.

One of the confusions, Mr. Lanctôt, may be that if we were passing another bill clause by clause, as each clause was disposed of, we would be constrained from going back to it. However, that is not the case here, given the structure of this bill. On these clauses that have multiple clauses within them, the members are free to move around them at will.

Thank you.

Mr. Szabo.

Mr. Paul Szabo: Mr. Chairman, I know the officials are looking at and considering among themselves a response to the question I just posed. While they're just finalizing their concise thinking, I would like to move the four motions with regard to the oath. We can discharge them as a committee without involving the officials.

I move that clause 12 on page 117 be amended by replacing line 6 with the following:

Public Service Commission (Add, in the case where an oath is taken, “So help me God” (or name of deity))”.

That is the motion.

The Chair: For clarification, this is a form of motion, and I'm assuming of consequential motions, recommended by the officials.

This is not a motion on the clause Mr. Lanctôt was referring to, but it goes back to the issue we had stood and agreed to come back to.

Is this motion in a form that satisfies the concerns of the officials?

Mr. John Mooney: Did Mr. Szabo read the version we gave him?

The Chair: Yes.

Mr. Paul Szabo: This motion is basically to have the option of saying “so help me God”.

(Amendment agreed to on division)

Mr. Paul Szabo: Mr. Chairman, as the officials noted, there were three consequential amendments. The first one is in clause 12, page 133, and it is identical.

I move that Bill C-25 in clause 12 be amended by replacing line 30 on page 133 with the following, being exactly what I read in the prior motion.

(Amendment agreed to on division)

Mr. Paul Szabo:Similarly, I move that Bill C-25 in clause 12 on page 148 be amended by replacing line 32 with the following, being the identical wording that we've just voted on in the prior two motions.

(Amendment agreed to on division)

Mr. Paul Szabo: Finally Mr. Chairman, because of the way things work, there's a carry-over phrase from a prior sentence. It's the same additional wording for amending the bill, but the words leading up to it are slightly different.

I move that clause 19 be amended by replacing line 23 on page 165 with the following--

» (1725)

The Chair: Excuse me, Mr. Szabo, we have to deal with one other issue. That clause has already been carried, so we have to ask for the consent of the committee to reopen that clause.

Do I have the consent of the committee to reopen clause 19 on page 165?

Mr. Paul Forseth: Read it into the record. I would just like to hear it. It's only a paragraph.

The Chair: I'm surprised this is considered an authority:

No Member shall speak disrespectfully of the Sovereign, nor of any of the Royal Family, nor of the Governor General or the person administering the Government of Canada; nor use offensive words against either House, or against any Member thereof. No Member may reflect upon any vote of the House, except for the purpose of moving that such vote be rescinded.

How is that relevant to this?

It is the interpretation of the clerk that Mr. Szabo could move, for example, that the vote previously taken on clause 19 be rescinded.

Are you moving that, Mr. Szabo?

Mr. Paul Szabo: I so move.

The Chair: Mr. Szabo has moved that the vote previously taken on clause 19 be rescinded.

(Motion agreed to on division.)

The Chair: Now, Mr. Szabo, move your motion.

Mr. Paul Szabo: I move that clause 19 be amended by replacing line 23 on page 165 with the following:

lic Service Staffing Tribunal (Add, in the case where an oath is taken, “So help me God”' (or name of deity))

The addition is identical, but words leading up to where the addition appears are slightly different, because of the form of the oath.

Mr. Roy Cullen: I'd just like confirmation from the officials.

In terms of this oath, would this amendment preclude someone from not taking the oath? Secondly, if a person were a Muslim, for example, could they say, “So help me, Allah”? Could someone use any expression they want?

Mr. John Mooney: Yes.

Mr. Roy Cullen: They could say inshallah, or whatever.

Mr. John Mooney: Yes.

Mr. Roy Cullen: Okay, that's fine.

A voice: Or they could say nothing.

Mr. Roy Cullen: Or nothing, yes. I established that; I was just trying to establish this second part as well.

Thank you.

(Motion agreed to on division)

The Chair: Monsieur Godin.

[Translation]

Mr. Yvon Godin: Point of order, Mr. Chairman.

The vote in favour of the motion to reopen clause 19 was not unanimous. Does this mean we can reopen all of the clauses?

[English]

The Chair: By unanimous vote, the committee can do pretty much what it desires to do. The committee is a master of its own fate.

[Translation]

Mr. Yvon Godin: But in this case there was no unanimity.

[English]

The Chair: With unanimity, they can do that.

I ruled yesterday that it took unanimous consent to open a clause. I was informed of this just now, and I read a clause into the record provided by the clerk suggesting that members may move motions to rescind clauses. I've been provided with two different pieces of advice.

» (1730)

[Translation]

Mr. Robert Lanctôt: Can we be informed? We need an answer to this.

[English]

The Chair: Mr. Lanctôt and members of the committee, I note that the hour for adjournment has arrived. I propose that we adjourn, and I will come back to the committee with further information on your question at the next meeting. We are going to adjourn to the call of the chair.

Thank you.