COMMITTEE OF EXPERTS OF THE FOLLOW-UP
MECHANISM FOR THE IMPLEMENTATION OF THE INTER-AMERICAN CONVENTION AGAINST
CORRUPTION
QUESTIONNAIRE ON PROVISIONS SELECTED BY THE
COMMITTEE OF EXPERTS FOR ANALYSIS WITHIN THE FRAMEWORK OF THE FIRST ROUND
REPORT BY CANADA
I.
BRIEF DESCRIPTION OF THE LEGAL-INSTITUTIONAL SYSTEM
Canada
is a federal state comprised of ten provinces (Alberta, British Columbia,
Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario,
Prince Edward Island, Quebec, and Saskatchewan) and three territories
(Northwest Territories, Yukon and Nunavut). While the ratification of
international treaties falls under federal jurisdiction, their implementation,
where necessary, includes the participation of all levels of government.
Canada
is a constitutional democracy governed by the rule of law. The Constitution
provides for the division of powers among levels of government and guarantees
the sovereignty of Parliament, subject to the limitations expressed in various
constitutional instruments, including the Constitution Act 1867, the Constitution
Act 1982 and any constitutional conventions that have developed over time.
The Constitution also ensures an independent judiciary that can act as the
final guardian and interpreter of laws.
The
Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society. In
particular, the Charter provides that everyone has the freedom of conscience
and religion; freedom of thought, belief, opinion and expression, including
the freedom of the press and other media of communication; freedom of peaceful
assembly; and freedom of association. It also includes democratic rights,
mobility rights, legal rights, and equality rights. The Constitution of Canada
is the supreme law of Canada, and any law that is inconsistent with the
provisions of the Constitution is, to the extent of the inconsistency, of no
force or effect.
II. CONTENT OF THE
QUESTIONNAIRE
CHAPTER ONE
MEASURES AND MECHANISMS REGARDING STANDARDS
OF CONDUCT FOR THE CORRECT, HONORABLE, AND PROPER FULFILLMENT OF PUBLIC
FUNCTIONS (ARTICLE III, 1 AND 2 OF THE CONVENTION)
1. General standards of conduct and
mechanisms
a.
Are there standards of conduct in your country for the correct, honorable
and adequate fulfillment of public functions? If so, briefly describe them and
list and attach a copy of the related provisions and documents.
The
federal government of Canada has in place standards of conduct for the
correct, honourable and adequate fulfillment of public functions, through a
combination of federal statutes, parliamentary rules, codes of conflicts of
interest and specific administrative guidelines. Various standards are
mentioned in response to this question, while other standards (e.g. standards
to prevent conflicts of interest and standards to ensure the proper
conservation and use of resources) are also identified in response to other
questions. Federal departments and agencies have also established statements
of their mission and values.
The
Public Service Commission (PSC) is responsible for the appointment of
qualified persons to, or from within, the Public Service in accordance with
the principles of the Public Service Employment Act (e.g. selection
according to merit) and for assisting deputy heads in the operation of staff
training and development programs in the Public Service. At the PSC,
Commissioners are required to take an oath of office and every deputy head and
employee on appointment from outside the Public Service must take an oath of
allegiance and an oath of office and secrecy.
Ministers
and Secretaries of State are subject to specific guidelines imposing
limitations on their dealings, on behalf of their constituents, with the
judiciary, federal quasi-judicial tribunals and Crown corporations. In
addition, the Prime Minister of Canada has issued new guidelines to govern
fundraising activities for personal political purposes.
On
May 23, 2002, the Prime Minister of Canada announced plans for an eight-point
plan of action on government ethics, to include making public
the Guide for Ministers and Secretaries of State; releasing revised
rules for ministerial dealings with Crown corporations, which would clarify
the relationship between ministers and Crown corporations when dealing with
constituency matters; making public guidelines to govern ministerial
fundraising for personal political purposes, which would establish rules and
procedures that will ensure that such fundraising causes no real or apparent
conflict of interest; tabling in the Fall 2002 the first annual report of the
Ethics Counsellor to Parliament on the range of his duties and activities;
proceeding in the Fall 2002 with a stand alone Code of Conduct for Members of
Parliament and Senators; tabling in the Fall 2002 changes to the Lobbyists
Registration Act; proposing in the Fall 2002 fundamental changes to the
legislation governing the financing of political parties and candidates for
office; and introducing measures that will strengthen the ability and
responsibility of senior public servants to exercise propriety and due
diligence in the management of public funds.
On
June
11, 2002, the Prime Minister publicly released the Guide
for Ministers and Secretaries of State. It contains the Prime
Minister's personal advice to the members of the Ministry on a wide range of
issues, from ethical conduct to management priorities, and reminds Ministers
and Secretaries of State of their constitutional, legal and ethical
responsibilities while holding public office.
The
Treasury Board also has a Policy on the Prevention and
Resolution of Harassment in the Workplace (June 2002), the purpose of which is
to foster a respectful workplace.
b.
Are there mechanisms to enforce compliance with the
above standards of conduct? If so, briefly describe them and list and attach a
copy of the related provisions and documents.
Generally
speaking, compliance mechanisms are built into or are associated with the
various standards. There is also Parliamentary, public and, where appropriate,
judicial scrutiny. Compliance mechanisms are addressed in other answers to
questions in this Chapter and reference should also be made to the oversight
bodies listed in Chapter 3. For example, in British
Columbia, Deputy Ministers are responsible for ensuring that any breaches are
thoroughly investigated and that appropriate action is taken.
c.
Briefly state the results that have been obtained
in implementing the above standards and mechanisms, attaching the pertinent
statistical information, if available.
Please
see the response to other questions in this Chapter and to Chapters 2 and 3.
d.
If no such standards and mechanisms exist, briefly
indicate how your State has considered the applicability of measures within
your own institutional systems to create, maintain and strengthen the
standards of conduct for the correct, honorable and proper fulfillment of
public functions, and mechanisms to enforce compliance, in accordance with
Article III (1) and (2) of the Convention.
N/A.
2. Conflicts of interests
a.
Are there standards of conduct
in your country regarding the prevention of conflicts of interest in the
performance of public functions? If yes, briefly describe them, indicating
aspects such as to whom they apply and the concept on which they are based,
and list and attach a copy of the related provisions and documents.
Canada
has in place a conflict of interest and post-employment code for federal
public office holders, federal servants, as well as departmental codes of
conduct. In addition, many
of the statutes that create administrative tribunals or specialized
commissions contain provisions for dealing with conflicts of interest if they
arise within that specific body.
In
the ten provinces and the three territories of Canada, generally similar rules
of conduct in the form of legislation or guidelines exist for public
officials, elected and appointed.
The
Conflict of Interest and Post-Employment Code for Public Office Holders applies to
Ministers, Secretaries of State, their exempt staff, Parliamentary
Secretaries, as well as Governor in Council appointees. It addresses basic
principles of conduct, which are followed by a set of rules regarding
conflicts of interest and compliance measures. The Code outlines rules
regarding which assets may or may not continue to be directly managed and sets
limitations on outside activities, acceptance of gifts and hospitality, and
post-employment activities. Ministers and Secretaries of
State interested in a party leadership campaign are also subject to specific
guidelines governing ministerial activities and fundraising. These
guidelines administered by the Office of the Ethics Counsellor address
government contracts, lobbyists, ministerial offices and fundraising.
As
part of his June 2002 announcement, the Prime Minister released Guidelines
for Ministerial Dealings with Crown Corporations. These guidelines are
intended to clarify the relationship between Ministers and Crown corporations
when dealing with constituency matters, to strengthen the managerial autonomy
of Crown corporations, and to limit direct contact between all members of the
Ministry and Crown corporations.
In
addition, amendments are planned to the Lobbyists Registration Act,
with the objective of improving its clarity, transparency and enforceability,
and ensuring that the Government of Canada has one of the most rigorous
regimes in the world. Important elements of this regime would include a
clearer definition of lobbying and the need to register, stronger enforcement
provisions, and simplified registration and strengthened deregistration
procedures. In addition, measures will be brought forward to prohibit lobbying
by former public office holders for a period of two years after leaving
office.
The
Parliament of Canada Act contains several conflict of interest
prohibitions pertaining to senators and members of Parliament. The Standing
Orders of the House of Commons and the Rules of the Senate of Canada also
address conflict of interest matters.
The
Conflict of
Interest and Post-Employment Code for the Public Service establishes
rules of conduct for federal public servants and is administered, through
delegation to the deputy ministers of the federal government departments, by
the Treasury Board Secretariat Office of Values and Ethics. This code
applies to all public servants for whom the Treasury Board represents the
government as employer.
The
Defence and Administrative Orders and Directives (DAOD)
provides direction and guidance to Canadian Forces (CF) members and Department
of National Defence (DND) employees with regard to dealing with offers of
gifts, hospitality or other benefits from sources external to the DND and CF.
Federal
judges have their own self-regulating conduct rules established through the
Canadian Judicial Council.
Alberta’s
Conflicts of Interest Act provides
the conflict of interest obligations for ministers and members of the
Legislative Assembly, and covers all of their responsibilities and obligations
with respect to inside information, gifts and hospitality, contracts and
payments, statements of assets and other interests that could give rise to a
conflict of interest. Alberta
also has the
Code of Conduct and Ethics for the Public Service of
Alberta, which defines the responsibilities of employees under
different subjects (e.g. impartiality, the obligation to disclose possible
conflicts of interests). Independent agencies may also have internal codes of
conduct or by-laws (e.g. Regional Health Authorities
and quasi-judicial regulatory bodies such as the Alberta Energy and Utilities
Board). At the municipal level, the Municipal
Government Act and municipal by-laws apply.
The
Members’ Conflict of Interest
Act of British Columbia stipulates that a member of the Legislative
Assembly must not be involved in a decision during the course of public duties
with the knowledge that there is an opportunity to further the member’s
private interests. The Standards for Conduct for Public Service Employees
state that a conflict of interest occurs when an employee’s private affairs
or financial interests are in conflict, or could result in the perception of
conflict, with the discharge of his or her public duties.
Prince
Edward Island has a few guidelines on conflicts of interest for public service
employees. The guidelines deal with political activities and the
responsibility of each employee to avoid all conflict of interest situations
and declare assets, external employment, activities and other situations that
could place someone in a conflict of interest.
In
March 1984, Manitoba adopted the Policy
on Conflict of Interests for
its public servants. This policy
was amended in June 1996 to specify that, from then on, it would also apply to
deputy ministers and those at the equivalent level. The Policy sets out the
right of employees to participate in community activities as citizens, upholds
the importance of the public interest and standards of honesty, integrity,
impartiality and ethical behaviour, and sets out the responsibility of each
employee to avoid all conflict of interest situations and disclose assets,
external employment, activities and other situations that could place someone
in a conflict of interest.
New
Brunswick has the Members’
Conflict of Interest Act, which sets out guidelines to govern the
conduct of members of the legislature in conflict of interest situations. It
prohibits and limits certain activities by members, and more specifically,
establishes provisions concerning a variety of matters, such as blind trusts
and conflicts of interest that could arise in making a decision. In
addition, there is a Conflict of Interest Act that deals with all
executive staff members, Deputy Ministers and heads of Crown corporations. New
Brunswick also has a conflict of interest policy, which covers the obligation
of employees to avoid any situation that could lead to a conflict, and sets
limits with respect to other employment. As well, provisions
under the Provincial Court Act prohibit judges from practicing,
carrying on or conducting any business in the practice or profession of the
law. They shall not engage in any business, trade, profession or occupation
without the prior approval in each particular case by the Lieutenant-Governor
in Council.
In
Nova Scotia, the Members and Public Employees Disclosure Act (1991) prescribes
the obligations of members of the legislature and members of the Executive
Council to disclose their personal assets (e.g. interest in real property and
securities) and those of their family, and the obligation to disclose the
contributions they receive during election campaigns. In addition, Part III of
the Act sets out specific obligations of public employees with respect to
conflict of interest, use of information obtained in the course of their
employment, and the obligation to disclose assets and potential conflict of
interest situations.
The
Members’ Integrity Act, 1994 deals with issues of conflict of interest
and Ontario parliamentary convention for Members of Provincial Parliament in
Ontario. The Act prohibits members of the Assembly from participating in
certain activities and provides for further restrictions on the activities of
Members of the Executive Council (e.g. engaging in employment or the practice
of a profession), including certain restrictions for a twelve-month post
employment period. Ontario’s
Public Service has the Rules of Conduct for Public
Servants, which was made pursuant to their Public Service Act in 1997 (Ontario
Regulations 435/97). These rules deal with the obligations of public servants
not to use their position or confidential information to which they have
access for personal gain; not to accept gifts; not to give preferential
treatment, including the hiring of family members; to be prudent in their
positions and in their activities outside work; and to declare assets and
other interests and situations likely to place them in a conflict of interest.
The
Act respecting the National Assembly clarifies conflict of interest
situations in Quebec for Members and the time limits allowed to put to an end
the conflict of interest situation once they become aware of it. The
Regulation respecting the ethics
and professional conduct of public office holders addresses the following issues: ethical principles and general rules of
professional conduct; political activities; remuneration; code of ethics and
professional conduct; and disciplinary process. Part II of the Public
Service Act of 1993 governs the rights and obligations of public servants.
These rules are broken down into four components: work performance,
relationship with the organization, servicing the public and conduct.
Quebec’s Treasury Board also has a statement of four values for the staff of
the Treasury Board Secretariat, namely, sense of State, the importance of
individuals, innovation and action.
Saskatchewan
has two main instruments regarding the conduct of the elected officials.
The Members’ Conflict of Interest Act provides a detailed
legislative framework for the disclosure of assets and interests of elected
officials and the avoidance of all abuse of inside information or elected
position. The Code of Ethical Conduct for Members of the Legislative Assembly,
as adopted by resolution of the Legislative Assembly for Saskatchewan,
provides for normative rules for all members of the Legislative Assembly
(elected officials) in their conduct both in the Assembly and with their
constituents. With respect to government officials, The Public Service Act
provides for specific rules for government officials regarding conflict of
interest, as does The Interpretation Act and The Crown Corporations
Act, 1993. The legislative
requirements under these Acts range from offences in extreme situations to
fines, suspensions and dismissals.
All
of Part II of the House of Assembly Act
of Newfoundland and Labrador deals with conflicts of interest for members.
Provisions are detailed and explain the members’ obligations and
their responsibilities. Newfoundland also has a Conflict of Interest Act
for its non-elected public office holders. This Act, amended in 1999, defines
the employment conditions and responsibilities and obligations of employees so
as to avoid situations of conflict (e.g. situations in which they take
personal advantage of the status of their position or insider information;
they accept gifts and other benefits; they participate in activities that may
influence their work decisions and result in a conflict of interest).
In
respect of elected Members of the Legislative Assembly of the Northwest
Territories (NWT), the governing statute is the Legislative Assembly and
Executive Counsel Act. In respect of public servants (employees) employed
by the Government of the Northwest Territories, the governing documents are
the Code of Conduct respecting Conflict of Interest and Oath of Office and
Secrecy for the employees of the Government of the Northwest Territories and
Appendix D to contracts of employment of Deputy Ministers. Members of Board and Councils are guided by the Conflict
of Interest Act.
Nunavut
was established as a Territory on April 1, 1999, at which time
its first-elected legislators and cabinet became subject to conflict of
interest provisions of the Legislative Assembly and Executive Council Act
duplicated from the pre-division Northwest Territories. On July 1, 2001, the
new Integrity Act came into force, establishing for members of the
Legislative Assembly, including the Executive Council, standards of conduct in
performing their duties of office. The
Act also provides a system of accountability overseen by an independent
officer of the Assembly, the Integrity Commissioner. The Act is based on the
concept that elected representatives accept an obligation to favour the public
good over private interests.
In
the Yukon, conflict of interest issues are dealt with in several Acts,
including the Public Government Act, the Conflict
of Interest (Members and Ministers, Public Servants and Cabinet and Caucus
Employees) Act, the Public Services Act and the Cabinet and
Caucus Employees Act. The Public Government Act creates a conflicts
commissioner who is an officer of the Legislative Assembly. The Conflict of
Interest (Members and Ministers, Public Servants and Cabinet and Caucus
Employees) Act establishes a Conflict of Interest Commission.
b.
Are there mechanisms to enforce compliance with the
above standards of conduct? If so, briefly describe them and list and attach a
copy of the related provisions and documents.
Generally
speaking, compliance mechanisms are built into or are associated with the
conflict of interest codes, and oversight bodies are usually in place.
See, for example: http://www.strategis.ic.gc.ca/SSG/oe01063e.html.
The
Guidelines for Ministerial Dealings with Crown Corporations announced in June
2002 include the establishment, by the offices of Ministers responsible for
Crown corporations, of procedures so that their staff can refer
representations from parliamentarians and constituents to Crown corporations
for appropriate action. Crown corporations will be expected to record all such
referrals.
c.
Briefly state the results that have been obtained
in implementing the above standards and mechanisms, attaching the pertinent
statistical information, if available.
Results
are made available through the annual reports of the various conflict of
interest commissioners. In New Brunswick, for example, one investigation was
undertaken in 2000 and another in 2001. In both cases the Commissioner of
Conflict of Interest concluded that there was no breach of the Act.
d.
If no such standards and mechanisms exist, briefly
indicate how your State has considered the applicability of measures within
your own institutional systems to create, maintain and strengthen the
standards of conduct intended to prevent conflicts of interests, and
mechanisms to enforce compliance, in accordance with Article III (1) and (2)
of the Convention.
N/A.
3. Conservation and
proper use of resources entrusted to public officials in the performance of
their functions
a.
Are there standards of conduct in your country that
govern the conservation and proper use of resources entrusted to public
officials in the performance of their functions? If yes, briefly describe
them, indicating aspects such as to whom they apply and whether there are
exceptions, and list and attach a copy of the related provisions and
documents.
In
the federal government of Canada, there is a very specific and structured
Financial Management Control Framework (FMCF) that consists of the Financial
Administration Act (FAA), the FAA Regulations, Central Financial and
Accounting Policies and Departmental Financial Policies (Systems and
Procedures). It applies to all
federal Government Departments and Agencies as defined in Section 2 of the FAA
and as listed in the Schedules attached to the FAA. The
Financial Administration Act provides for the financial administration
of the Government of Canada, the establishment and maintenance of the accounts
of Canada including parliamentary control of all public funds into and out of
the Consolidated Revenue Fund, the office of the Receiver General, the powers
and functions of the Treasury Board and Comptroller General, and the control
of the Crown corporations. Under
the Financial Administration Act, the government is required to report
on its financial activities in the Public Accounts. Provinces have similar
requirements for financial administration. The provinces and territories
produce final accounts within 12 months of fiscal-year end. In addition,
British Columbia’s Budget Transparency and Accountability Act
provides for disclosure of information with respect to ministry service plans,
major projects and budgets, and sets out mechanisms to ensure that the public
is able to review government budgets and service plans.
The
standards and mechanisms for the conservation and proper use of resources,
although not formally listed or promulgated anywhere per se, are
actually an integral part of and are embedded in the FMCF mechanism.
The Government Accounting Policy Division has promulgated a Treasury
Board Accounting Manual and a set of Treasury Board Accounting Standards,
which also support the FMCF.
In
June 2002, the Prime Minister announced that the President of the Treasury
Board will bring forward recommendations to enhance accountability for the
expenditure of public funds, including mechanisms for more explicit accounting
of departmental affairs by Deputy Ministers. Building on the FAA, this
initiative will contribute to promote due diligence in the management of
public funds.
The
Treasury Board Secretariat has various mechanisms in place to ensure efficient
management and delivery of public services. For example, it has
issued specific guidelines for Ministers’ Offices. These
guidelines consolidate the various financial, personnel and administrative
rules and regulations that govern expenses incurred by Ministers, Secretaries
of State and their exempt staff in the performance of duties related to their
portfolio responsibilities.
The
Board of Internal Economy of the House of Commons has adopted several by-laws
under the Parliament of Canada Act, which regulate the use of
parliamentary resources made available to Members in the performance of their
parliamentary functions.
Federal,
provincial and territorial conflict of interest codes and codes of conduct,
and provincial and territorial financial administration acts and financial
management policies, also address the conservation and proper use of
resources.
b.
Are there mechanisms to enforce compliance with the
above standards of conduct? If so, briefly describe them and list and attach a
copy of the related provisions and documents.
Independent
auditors, including auditors general, at both the federal and provincial
levels, carry out external audit. A Treasury Board Active Monitoring Policy
has been recently promulgated and the process of formalizing a mechanism to
ensure its appropriate implementation on a Treasury Board Secretariat and
Government-wide basis is now underway. For information on
conflict of interest oversight bodies and compliance mechanisms, see the
responses to Chapter 1, Question 2b, Chapter 2, Question a, and Chapter 3,
Question 1b. For each Crown corporation, there is a named responsible
minister, a board of directors charged with overseeing the business and
affairs of the corporation, and a chief executive officer. Treasury Board
approves corporate plans and budgets, and the responsible minister for the
corporation must table a summary of the approved plans and budgets in
Parliament. Each Crown corporation must prepare an annual report containing
audited financial statements. Most corporations must have a special
examination once every five years.
In
British Columbia, for example, provisions of the Financial Administration
Act, the Budget Transparency and Accountability Act, and procedures
for enforcing the Standards of Conduct for Public Service Employees
would apply.
c.
Briefly state the results that have been obtained
in implementing the above standards and mechanisms, attaching the pertinent
statistical information, if available.
The
reports of the federal, provincial and territorial auditors general are
available on-line. For Crown corporation corporate plans and budgets, it is
extremely rare that the corporation does not submit its annual plan and
budgets to Treasury Board.
d.
If no such standards and mechanisms exist, briefly
indicate how your State has considered the applicability of measures within
your own institutional systems to create, maintain and strengthen the
standards of conduct intended to ensure the proper conservation and use of
resources entrusted to public officials in the performance of their functions,
and mechanisms to enforce compliance, in accordance with Article III (1) and
(2) of the Convention.
N/A.
4. Measures and systems requiring public
officials to report to appropriate authorities acts of corruption in the
performance of public functions of which they are aware
a.
Are there standards of conduct in your country that
establish measures and systems governing the requirement that public officials
report to appropriate authorities acts of corruption in public office of which
they are aware? If yes, briefly describe them, indicating aspects such as to
whom they apply and if there are any exceptions, and list and attach a copy of
the related provisions and documents.
The
Policy
on the Internal Disclosure of Information Concerning Wrongdoing in the
Workplace came into force on November 30, 2001. The objective of this policy
is to allow employees to bring forward information concerning wrongdoing, and
to ensure that they are treated fairly and are protected from reprisal when
they do so in a manner consistent with the policy. The
departments under the direct responsibility of the Treasury Board Secretariat
have each appointed a senior officer who is responsible for receiving and
acting on internal disclosures and who maintains regular contact with the
Treasury Board Secretariat. On November 8, 2001, the
government also announced the appointment of the first Public Service
Integrity Officer.
The
Policy on Losses of Money and Offences and Other Illegal Acts Against the
Crown
was established by the Treasury Board in order to assure the following: that
any loss of funds and all allegations of infraction or other illegal acts are
signalled to the proper authority; that investigations are conducted in these
matters; and that the necessary follow-up measures are taken.
In
June, the Prime Minister of Canada announced that the Ethics Counsellor will
be appointed after consultation with the leaders of the opposition parties for
a term of five years, and his dismissal could only take place with the
concurrence of Parliament. The Ethics Counsellor will have the authority to
inquire into complaints referred to his Office by any member of Parliament,
and will now be tabling an annual report on the activities of his Office that
will be presented to the Speaker of the House of Commons. The
Ethics Counsellor will also be available to appear before parliamentary
committees to answer questions on the report.
Provinces
and territories address these matters in various ways. In Saskatchewan, for
example, government officials are expected, as a matter of course, to identify
and report any questionable acts in public office, of
which they become aware. The oath of office of public officials requires them
to act in compliance with the law. In Alberta, any person can request an
investigation of an alleged breach of the Conflicts
of Interest Act by a Member of the Legislative Assembly. There is no
specific whistleblower legislation, but s. 82(2) of the Freedom of Information and Protection of Privacy Act deals with an
employee bringing certain information to the attention of the Information and
Privacy Commissioner. In respect of elected
members of the Legislative Assembly of the NWT, the complaint mechanism is
always available, although it is not of a mandatory nature (see ss. 100-107).
In respect of public servants of the NWT, see sections 83-85 of the Code
of
Conduct respecting Conflict of Interest and oath of Office and Secrecy.
In B.C., while there are no
specific reporting obligations for the public service, whistleblowers who do
report corruption or other misdeeds are protected by the B.C. Government and
Service Employees’ Union Master Agreement.
b.
Are there mechanisms to enforce compliance with the
above standards of conduct? If so, briefly describe them and list and attach a
copy of the related provisions and documents.
The
departments under the direct responsibility of the Treasury Board Secretariat
have each appointed a senior officer who is responsible for receiving and
acting on internal disclosures and who maintains regular contact with the
Treasury Board. In respect of public servants of the NWT, see sections 95-98
of the Code of Conduct respecting Conflict of Interest and oath of Office
and Secrecy. In B.C., there is a mechanism for
enforcing standards of conduct of police in the Police Act and in the Code
of Professional Conduct Regulation.
c.
Briefly state the results that have been obtained
in implementing the above standards and mechanisms, attaching the pertinent
statistical information, if available.
The
Policy
on the Internal Disclosure of Information Concerning Wrongdoing in the
Workplace is quite new. The
Public Integrity Officer will provide annual reports to Parliament on the
operation of the policy. The
Prime Minister’s proposals with respect to the Ethics Counsellor
have yet to take place. In B.C., the Office of the Police
Complaints Commission oversees the police complaint process.
d.
If no such standards and mechanisms exist, briefly
indicate how your State has considered the applicability of measures within
your own institutional systems to create, maintain and strengthen the
standards of conduct that establish measures and systems governing the
requirement that public officials report to appropriate authorities acts of
corruption in public office of which they are aware, and mechanisms to enforce
compliance, in accordance with Article III (1) and (2) of the Convention.
N/A.
CHAPTER TWO
SYSTEMS FOR REGISTERING INCOME, ASSETS AND
LIABILITIES
(ARTICLE III, 4)
a.
Are there
regulations in your country establishing methods for registering the income,
assets and liabilities of those who perform public functions in certain posts
as specified by law and, where appropriate, for making such disclosures
public? If yes, briefly describe them, indicating aspects like to whom they
apply and when the declaration must be presented, the content of the
declaration, and how the information given is verified, accessed, and used.
List and attach a copy of the related provisions and documents.
Under
the
federal Conflict of Interest and Post-Employment Code for Public Office
Holders, confidential disclosure is required. Adherence to this Code is a
condition of holding office. Its rules are based on prevention and avoidance
of conflicts of interest. The process begins by the submission to the Office
of the Ethics Counsellor of a mandatory confidential report, within 60 days
from the date of appointment. Public Office Holders must disclose in
confidence, all their assets, investments, debts, former and current outside
activities, gifts and hospitality and other benefits. While disclosure is also
mandatory for Ministers’ and Secretaries’ of State spouses and dependents,
the information provided is used by the Ethics Counsellor to better advise
them on preventing conflicts from arising in respect of their spouses’
interests. Each element of this disclosure is analysed to determine which
compliance measure (sale, blind trust, blind management agreement or
resignation) is most appropriate for the public office holder. All public
documents that a public office holder must execute as a compliance arrangement
are deposited in a Public Registry. Certain assets, outside activities and
gifts, hospitality and other benefits permissible under the Code must be
declared publicly. The Public Registry also contains a statement indicating
the methods used for complying with the requirements of the Code. This
registry is available to the public through the web site of the Office of the
Ethics Counsellor. As a consequence, the participation of the public office
holder in decision-making processes will not be influenced by any private
interests, since none should exist once in compliance with the Code.
The
Guidelines to Govern Ministerial Activities for Personal Political
Purposes, released by the Prime Minister in
June 2002, address four specific areas: government contracts, lobbyists,
ministerial offices and fundraising. Under these guidelines, Ministers may opt
to put contributions in a blind trust that will be disclosed no later than 30
days before a convention. Donations, including contributions in kind,
collected outside of a blind trust or which otherwise become known to a
Minister, must be disclosed every 60 days.
In addition, those working on a Minister's leadership campaign will be
ineligible either to lobby or to receive contracts from the Minister's
department or any agencies in the portfolio. Ministerial exempt staff wishing
to become engaged full time in a leadership campaign must take a leave of
absence without pay or resign.
The
Prime Minister also announced that the government will introduce strengthened
legislation governing the financing of political parties and candidates to
enhance fairness and transparency. Changes will be proposed to set specific
limits on donations from corporations, unions and individuals, and to
introduce enhanced tax measures facilitating individual contributions. All
Members of Parliament will be required to disclose all contributions on a
regular basis. As well, the financing of political parties' leadership
campaigns will be regulated by law.
Federal
public servants may comply with the Conflict
of Interest and Post-Employment Code for the Public Service of Canada by completing and submitting to a
designated official in their department or agency a disclosure of their
private interests when such a situation could lead to a conflict with their
official responsibilities. Failure to comply with the measures can be subject
to appropriate disciplinary action. The receipt of a gift, hospitality, or
other benefit, or participation in any outside employment or activity, which
may present a conflict, is also to be divulged. These obligations arise from
the Treasury Board policy, not from a statute. Salaries of public service
employees are based on a complex system of classification. The range of salary
for every category of employment is in the public domain. No provisions exist
requiring the disclosure of income, assets and liabilities of persons related
to public service employees.
In
the Canadian military, a CF member’s assets are classified into two types.
Exempt assets are all assets and interests of a non-commercial
character intended for the private use of CF members and their families.
Non-exempt assets and liabilities are all assets and interests, other than exempt
assets and interests, and liabilities. They must be declared in a Confidential
Report when they may give rise to a Conflict of Interest in respect of a
CF member’s official duties. The DAOD provides
direction and guidance to CF members and DND employees with regards to dealing
with assets and liabilities.
In
the ten provinces and the three territories of Canada, generally speaking,
similar systems exist.
In
Saskatchewan, for example, sections 11 to 17 of The Members’ Conflict of
Interest Act set out a system whereby elected officials must privately
declare all incomes, assets and liabilities to the Conflict of Interests
Commissioner who, in turn, then provides a public disclosure statement to the
Legislative Assembly, which is available for public review.
In
Ontario, under the Members Integrity Act, 1994, Members are required to
file an annual Private Disclosure Statement containing financial information
with respect to the member, spouse, minor children and private companies, and
must file a Statement of Material Change after a significant change in the
financial situation. A Public Disclosure Statement is completed and filed with
the Clerk of the Legislative Assembly, for purposes of public information. The
Public Sector Salary Disclosure Act, 1996 requires
that ministries disclose salary and other information about government
employees earning $100,000 or more.
In
Alberta, the Conflicts of Interest Act
requires all 83 Members of the Legislative Assembly to file, on an annual
basis, disclosure statements of all income, assets, liabilities, and financial
interests for the Member, the Member’s spouse, minor children and private
corporations controlled by any of them. The information filed is to the best
knowledge of the Member and is not verified by the Ethics Commissioner unless
the information is relevant to an alleged breach of the Act. Based on the
confidential information provided to the Ethics Commissioner, public
disclosure statements are prepared (deleting all values and amounts) and those
documents are accessible to the public through the Office of the Clerk of the
Legislative Assembly. Approximately 70-75 senior officials (deputy
minister-level positions) file confidential disclosure statements on an annual
basis. No public disclosure
statements are created. No
confidential statements (for senior officials or elected officials) are
accessible through Freedom of
Information and Protection of Privacy Act requests.
In
New Brunswick, The Members’ Conflict of Interest Act requires each
member to provide a private disclosure statement to the Commissioner
containing a statement on the nature of certain types of assets, liabilities,
financial and business interests of the member and his or her minor children,
as well as salary and assistance received from or to be received from a
registered political party. The statement must be filed within 60 days of
becoming a member of the legislative Assembly and each subsequent year.
For
systems in place in the NWT, see 87-90 of the Code regarding elected
members of the NWT Legislative Assembly and sections 27 to 50 of the Code
and Sections II and III of the Appendix regarding public servants (employees)
of the NWT Government. See also section 2 of the Conflict
of Interest Act.
In
B.C., see sections 7, 16 and 17 of the Members’ Conflict of Interest Act.
b.
Briefly state the results that have been obtained
in implementing the above standards and mechanisms, attaching the pertinent
statistical information, if available.
Results
are made available through the annual reports of the various conflict of
interest commissioners and on the various websites.
c.
If no such regulations exist, briefly indicate how
your State has considered the applicability of measures within your own
institutional systems to create, maintain and strengthen the regulations that
establish methods for registering the income, assets and liabilities of those
who perform public functions in certain posts as specified by law and, where
appropriate, for making such disclosures public, in accordance with Article
III (4) of the Convention.
N/A.
CHAPTER
THREE
OVERSIGHT
BODIES
a.
Are there oversight bodies charged with the responsibility of ensuring
compliance with the provisions stated in Article III (1), (2) and (4)? If yes,
list and briefly describe their functions and characteristics, and attach a
copy of the related provisions and documents.
A
great number of oversight bodies are in place in Canada. In answer to this
question, a representative sampling is provided, but see also the responses to
the other questions.
In
respect of the federal government, oversight bodies include the PSC, the
Treasury Board of Canada, the Office of the Auditor General of Canada, the
Office of the Ethics Counsellor, the RCMP Office of the Ethics Advisor, the
RCMP Public Complaints Commission, the RCMP External Review Committee, the
Security Intelligence Review Committee, the Information Commissioner, the
Privacy Commissioner, the Public Accounts Committee (a non-partisan Committee
of Parliament), the Government-wide Internal Audit Community, the Public
Service Integrity Officer, the
Office of Infrastructure and Crown Corporations of Canada, the National
Defence and Canadian Forces Ombudsman, the Canadian Forces Grievance Board and
the Military Police Complaints Commission. Auditors general, conflict of
interest commissioners, ombudsmen, police commission and boards, and other
oversight bodies may also be found in the provinces and territories.
b.
Briefly state the results that said oversight bodies have obtained in
complying with the previous functions, attaching the pertinent statistical
information, if available.
Annual
reports are filed by many of the above oversight bodies and are publicly
available. Most Crown corporations submit annually their corporate plans and
budgets for Treasury Board approval.
c.
If no such oversight bodies exist, briefly indicate how your State has
considered the applicability of Article III (9) of the Convention.
N/A.
PARTICIPATION BY CIVIL
SOCIETY (ARTICLE III, NUMBER 11)
1.
General questions on the mechanisms for participation
a.
Are there in your country a legal framework and mechanisms to encourage
participation by civil society and non-governmental organizations in efforts
to prevent corruption? If so, briefly describe them and list and attach a copy
of the related provisions and documents.
There
are extensive frameworks of laws and mechanisms and Parliamentary and
legislative and regulatory processes in place to foster transparency and
accountability in governments in Canada. Laws may be overturned if they
violate the Charter. Oversight bodies, access to information
legislation, and a tradition of public consultation by governments exist in
Canada. As can be seen from the responses to the questions, which follow in
this Chapter, there are laws in relation to, for example, public inquiries,
referenda, and public complaint mechanisms. Members of the public may petition
Parliament and the legislative assemblies on issues. In
B.C., there are regularly scheduled “Open Cabinet Meetings” to increase
the transparency of Cabinet decision-making.
Canada,
through the Canadian International Development Agency (CIDA), contributes
funding to Transparency International, and to civil society organizations,
which seek to strengthen the role of civil society (e.g. the Institute for
Strong Communities and CIVICUS). On
February 1, 2002, CIDA signed a three-year partnership agreement with the
Canadian Foundation for the Americas (FOCAL), whereby FOCAL is to continue to
work on various themes, including governance and civil society, as they
pertain to the Americas; to offer an independent view on developments in the
Americas; and to urge governments to implement fully the commitments made at
the Quebec City Summit.
b.
Briefly state the results that have been obtained in implementing the
above standards and mechanisms, attaching the pertinent statistical
information, if available.
The
Government of Canada requires its departments and agencies to submit to a
number of review processes which may, at times, address public participation
activities. The Treasury Board Secretariat is responsible
for providing parliamentarians and Canadians with easy access to government
performance and expenditure information and related material. Reporting to
Parliament, the Auditor General of Canada audits government operations and
provides the information that helps Parliament hold the government to account
for its stewardship of public funds. In addition, the Parliament of Canada
conducts this process through the Standing Committee on Government Operations
and Estimates. Overall, the results of these
many mechanisms have contributed to the development of public policies,
legislation and programs on a variety of issues.
c.
If no such mechanisms exist, briefly indicate how your State has
considered the applicability of measures within your own institutional systems
to create, maintain and strengthen the mechanisms to encourage participation
by civil society and non-governmental organizations in efforts to prevent
corruption, in accordance with Article III (11) of the Convention.
N/A.
2. Mechanisms for
access to information
a.
Are there mechanisms in your country that regulate
and facilitate the access of civil society and non-governmental organizations
to information under the control of public institutions? Is so, describe them
briefly, and indicating, for example, before which entity or agency said
mechanisms may be presented and under what criteria the petitions are
evaluated. List and attach a copy of the related provisions and documents.
The
Access to Information Act regulates and facilitates the access of civil
society and non-governmental organizations to information in the control of
federal public institutions. The Act is said to be quasi-constitutional
in that it overrides provisions in other federal laws, except those listed in
Schedule II of the Act. The Act provides a right of access to federal
government information in accordance with certain principles, subject to
certain exemptions and exclusions. Personal information held by the federal
government is governed by the provisions of the Privacy Act.
The
Access to Information Act identifies the institutions it applies to,
the types of government information that may or must be protected in response
to requests, and the types of information that are excluded entirely from the
scope of the Act. The Act also delineates the process for making a request,
including the timelines and the procedures for notifying third parties; it
establishes the Office of the Information Commissioner to receive and
investigate complaints; and provides a further right of review by the Federal
Court of Canada.
The
Minister of Justice is responsible for the legislation. The President of the
Treasury Board has been designated as the Minister responsible for overseeing
the administration of the Act, for the issuance of guidelines and directives
to government institutions, and for producing a publication (Info Source)
containing information about government institutions and their information
holdings to assist individuals in exercising their rights under the
legislation. The Act establishes the Office of the Information Commissioner,
who is an ombudsman appointed by Parliament to investigate complaints that the
government has denied rights under the Access to Information Act.
The
Act provides government institutions with 30 days to respond to access
requests. Extended time may be claimed if there are many records to examine,
other government agencies to be consulted or third parties to be notified. The
requester must be notified of these extensions within the initial time frame.
Access rights are subject to specific and limited exemptions, balancing
freedom of information against individual privacy, commercial confidentiality,
national security and the frank communications needed for effective
policy-making. Such exemptions permit government agencies to withhold
material, often prompting disputes between applicants and departments.
Dissatisfied applicants may turn to the Information Commissioner who
investigates applicants' complaints that: they have been denied requested
information; they have been asked to pay too much for copied information; the
department's extension of more than 30 days to provide information is
unreasonable; the material was not in the official language of choice or the
time for translation was unreasonable; they have a problem with the Info
Source guide or periodic bulletins which are issued to help the public use the
Act; or they have run into any other problem using the Act.
The
provinces and territories also have access to information and privacy
legislation.
b.
Briefly state the results that have been obtained
in implementing the above standards and mechanisms, attaching the pertinent
statistical information, if available.
Results
obtained in implementing the above standards and mechanisms can be found in
the Information Commissioner's Annual Report. Annual
reports by provincial and territorial information and privacy commissioners
also provide information on results in these jurisdictions. On June 12, 2002,
the Access to Information Task Force issued a report, which included
recommendations to modernize access to information.
3. Mechanisms for
consultation
a.
Are there mechanisms in your country for those who
perform public functions to consult civil society and non-governmental
organizations on matters within their sphere of competence, which can be used
for the purpose of preventing, detecting, punishing, and eradicating public
corruption? If so, briefly describe them and list and attach a copy of the
related provisions and documents.
The different levels of
government frequently resort to public consultation mechanisms as a way of
ensuring that citizens are given an opportunity to participate in government
decision-making with regard to public policies, legislation, regulation and
programs. At all levels of government in Canada, individual
departments and agencies are legislatively mandated with responsibility for
specific areas of public policy. In
most cases, these departments and agencies will, at times, have recourse to
public participation mechanisms to ensure that Canadians are involved in their
policy, legislative, and program development.
In some cases, these provinces and agencies frame these mechanisms with
department or agency specific guidelines. In addition, as is the case with
the Government of Canada, provincial and territorial legislation may also
mandate that the public be consulted on matters of public policy, legislation
and regulation.
The
provinces and territories involve the public through consultation in a broad
range of policy areas.
There
are opportunities for the government or public servants to consult outside
government on new initiatives. There is also the provision of main estimates,
public debates in the legislature on the actions of government, debates within
standing committees of the Parliament of Canada and the provincial and
territorial legislative assemblies, which bring actions of the governments
under scrutiny. Canada has supported the
anti-corruption initiatives of The Trust for the Americas. It has participated
in and financially assisted a roundtable discussion on "Transparency and
Governance in the Americas" organized by the Canadian Foundation for the
Americas (FOCAL), bringing together experts from throughout the hemisphere,
including civil society organizations and the OAS, to discuss regional
anti-corruption initiatives and policy challenges. In addition, civil society
organizations interested in the Summit of the Americas, 2001 process and in
hemispheric issues were able to express their comments and opinions through
regularly organized information exchange sessions, and meetings were organized
with various civil society representatives from across Canada. Further, on
April 15, 2002, the government organized a day of discussion with civil
society to take stock of progress over the past year following the Summit of
the Americas. One workshop dealt with good governance and security, while
another dealt with corruption and corporate social responsibility.
A further example of a
consultation process undertaken by the Government of Canada was the 2001
written consultation on the Proposed United Nations Instrument Against
Corruption. In addition, on June 21, 2001, federal officials participated
in a Roundtable on International Corruption with members of civil society and
of non-governmental organizations, sponsored by the Canadian Centre for
Foreign Policy Development.
b.
Briefly state the results that have been obtained
in implementing the above standards and mechanisms, attaching the pertinent
statistical information, if available.
There
is a long tradition in Canada of consultation with civil society.
Consultations will continue to take place with civil society, through public
consultation mechanisms, to give citizens an opportunity to participate in
government decision-making with regard to public policies, legislation,
regulation and programs. As can be expected, the experience gained – and the
results obtained – by Canada’s different levels of government with public
consultation mechanisms has been varied.
This is in part the result of the variety of mechanisms that the
different levels of government in Canada have resorted to in order to consult
the public, and the broad range of issues that have been treated by public
consultation processes. Survey research conducted by Ekos Research Associates
found that of the 28% of Canadians who had participated in a
consultation/citizen engagement exercises 24% had participated in a process
organized by the federal government, 46% did so in a provincial government
process and 19% did so in a process organized by the municipal level.
“Overall, those who participated in a consultation/citizen engagement
activity sponsored by the government rate those exercise more favourably than
unfavourably.” ( Ekos Research Associates, Rethinking Citizen
Engagement: Moving From Theory to Practice. Final Report. June 2001. p.
39.)
4.
Mechanisms to encourage active participation in public administrat