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The Federal Accountability Act

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The Federal Accountability Act in relation to David Emerson’s switch of parties

[Passage of the Federal Accountability Act]

[What the Federal Accountability Act contains]

[The Act doesn’t allow direct public complaints to the Commissioner]

[Five rules from old Public Office Holders Code do not appear in the Act]

[The Act contains nothing about floor-crossing]

Passage of the Federal Accountability Act

Bill C-2, the Federal Accountability Act, was tabled in the House of Commons on 11 April 2006, passed by the House of Commons on 22 June 2006, and received Royal Assent on 12 December 2006. The final version of the Act is available in English and French.

What the Federal Accountability Act contains

The Act is anticorruption legislation; it addresses the issue of financial influence from corporations, unions, and individuals (though not advocacy groups).

The Act created a Conflict of Interest Act that enshrined provisions from the old (2006) Conflict of Interest and Post-Employment Code for Public Office Holders, referred to below as the Public Office Holders Code. The Code applies to federal politicians, their staff, all government employees, and all Cabinet appointees other than judges and lieutenant governors.

The Act created a new position — “Conflict of Interest and Ethics Commissioner” — from two old ones, the Ethics Commissioner and Senate Ethics Officer.

The Commissioner must have judicial or quasi-judicial training, so the old Ethics Commissioner, Bernard Shapiro, is not eligible for the new Commissioner position.

The Commissioner administers the new Conflict of Interest Act, the 2004 Conflict of Interest Code for Members of the House of Commons, the 2005 Conflict of Interest Code for Senators, and initiates formal investigations.

The government published on 1 March 2007 a revised edition of Accountable Government: A Guide for Ministers and Secretaries of State (259 KB) that provides guidelines for political activities for all public office holders. The Guide is a companion to the Federal Accountability Act.

The Act doesn’t allow direct public complaints to the Commissioner

Subsection 44(4) of the Act permits members of the public to advance complaints to the Conflict of Interest and Ethics Commissioner, but only through a Member of the House of Commons or Senate. Subsection 44(4) is as follows in English and French:

Information from public

 44. (4)  In conducting an examination, the Commissioner may consider information from the public that is brought to his or her attention by a member of the Senate or House of Commons indicating that a public office holder or former public office holder has contravened this Act. The member shall identify the alleged contravention and set out the reasonable grounds required under subsection (5).

 

 44.  (4)  Dans le cadre de l’étude, le commissaire peut tenir compte des renseignements provenant du public qui lui sont communiqués par tout parlementaire et qui portent à croire que l’intéressé a contrevenu à la présente loi. Le parlementaire doit préciser la contravention présumée et les motifs raisonnables sur lesquels la communication visée au paragraphe (5) est fondée.

 

Renseignements provenant du public

One of Stephen Harper’s campaign promises in a November 2005 document on the Federal Accountability Act was to “Allow members of the public — not just politicians — to make complaints to the Ethics Commissioner.” The Federal Accountability Act does allow the public to make complaints to the new Commissioner, but whereas before the public could contact the Commissioner directly, it must now ask an elected official to make that contact.

(In a 14 March 2006 news release, Democracy Watch took the view that, by forcing the public to associate with a partisan politician, Mr. Harper is violating the right of the public to Subsection 2d) of the Canadian Charter of Rights and Freedoms, which is freedom of association.)

Five rules from old Public Office Holders Code do not appear in the Act

Democracy Watch has noted that five rules in the old Conflict of Interest and Post-Employment Code for Public Office Holders have been deleted from the new Conflict of Interest Act (which was created by the Federal Accountability Act). These rules include what the organization calls:

The “honesty rule” that public-office holders must “act with honesty.”

The “uphold the highest ethical standards rule” that public-office holders “uphold the highest ethical standards so that public confidence and trust in the integrity, objectivity and impartiality of government are conserved and maintained.”

The Act contains nothing about floor-crossing

The Federal Accountability Act says nothing about MPs crossing the floor of the House of Commons. This lack was the subject of comments in the House of Commons on, for example the 25th and 26th of April 2006, soon after the Act was tabled.

Also, an attempt was made by the Liberals to address floor-crossing in the Act in early June 2006, shortly before the Act was passed by the House of Commons. Stephen Owen (Liberal) proposed an amendment to the Legislative Committee on Bill C-2 on 12 June. The amendment, which was described as a “recall procedure,” called for a by-election if a simple majority of constituents in an MP’s riding signed a petition within 60 days of an MP switching parties, and submitted $5,000 to the Chief Electoral Officer of Canada. The amendment was not to be retroactive, so it wouldn’t have affected David Emerson. The amendment was defeated in the Legislative Committee.

 
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