Canada: Federal Accountability Act

I. Introduction

On April 11, 2006, the President of the Treasury Board introduced Bill C-2, An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability – more commonly known as the Federal Accountability Act. The massive omnibus legislation proposes to amend dozens of federal statues in an attempt to address growing concerns about a lack of ethical conduct and accountability in government. The overarching rationale for the legislation, which some critics have suggested is excessive, is to restore public confidence in the institutions of government.

The 192 page Federal Accountability Act contains some 317 sections and proposes new measures in thirteen separate areas including: the financing of political parties and candidates; strengthening the powers of both the Ethics Commissioner and Auditor General; toughening the rules governing lobbyists; creating a Parliamentary Budget Authority; establishing new methods for making government appointments; creating a government Procurement Auditor; providing protection for whistleblowers; and creating a Director of Public Prosecutions.

Given the substantial and substantive changes to a number of federal statutes, and given the size and complexity of the Federal Accountability Act, it is difficult to outline all of the proposed changes in any brief summary. There are, however, certain commitments that are of such undeniable importance that they are particularly worthy of mention. To that end, the following is a brief synopsis of some of the major changes brought forward by the Conservative government of Prime Minister Stephen Harper.

The Federal Accountability Act will amend the Canada Elections Act to impose a complete ban on political contributions from corporations, unions, and organizations. Moreover, the annual contribution limit for private individuals will be significantly reduced from $5,000 to $1,000 per year. The amendments will also limit an individual candidate, nomination contestant or leadership contestant from using more than $1,000 of their own money, in addition to the general contribution limits, for their own campaigns. The Federal Accountability Act also prohibits individuals from either giving or receiving cash donations in excess of $20.

With respect to the practice and profession of lobbying, the Federal Accountability Act will amend the Lobbyist Registration Act (to be thereinafter called the Lobbying Act) to require lobbyists (consultant lobbyists as well as in-house lobbyists) to document on a monthly basis their in-person meetings and telephone conversations with senior public officials. The Commissioner of Lobbyists will have the authority to confirm the accuracy of the reports filed by lobbyists with the senior public officials in question. The Federal Accountability Act will enshrine in law the rule restricting ministers, ministerial staff, and senior public servants from engaging in lobbying activities for a period of five years after leaving the government. The new legislation will also prohibit lobbyists from charging or receiving contingency fees.

In the area of government procurement, the Federal Accountability Act provides for the creation of a Procurement Auditor to review procurement practices and complaints from potential suppliers for contracts with a monetary value of less than $25,000 for goods and $100,000 for services. The Procurement Auditor will also be charged with managing an alternative disputeresolution program for contracts and reviewing procurement practices on an ongoing basis to ensure fairness and transparency. Treasury Board officials confirm that the creation of the Procurement Auditor will not impact the existing jurisdiction of the Canadian International Trade Tribunal in this area.

The Federal Accountability Act will also expand the scope and powers of various statutes and offices to cover Crown corporations and other recipients of federal funding. The Act will expand the reach of the Access to Information Act and the Privacy Act to include organizations like the Office of Chief Electoral Officer, the Office of the Auditor General, the Commissioner of Lobbying, Canada Post, Via Rail, and the CBC. Similarly, the Act will give the Auditor General the power to inquire into the use of funds individuals and institutions receive from federal departments, agencies, or Crown corporations.

Lastly, the Federal Accountability Act will formally separate the Federal Prosecution Service from the Department of Justice in an effort to isolate federal criminal prosecutions from political influence. The move will result in the creation of the Office of the Director of Public Prosecutions, which will be ultimately responsible for prosecuting federal offences throughout Canada and providing legal advice to investigative agencies and government departments in matters of criminal law. The office will also have the jurisdiction to prosecute offences under the new fraud provisions proposed under amendments to the Financial Administration Act.

According to the Prime Minister, the purpose of introducing the measures outlined in the Federal Accountability Act was both to restore a "culture of accountability" in the government and also to "strengthen and streamline government so that it can function more efficiently." While there is no question that the proposed amendments will increase the opportunity for Canadians to monitor the actions of the government and those that try to influence decisions of government, it remains to be seen whether the cumbersome mechanisms that have been created to facilitate access and accountability will improve the efficiency of government.

Corporations, organizations and individuals who engage in lobbying, bid on government procurement contracts, or receive federal funding through departments or agencies, will now be required to accept a sizeable number of administrative burdens. Whether these burdens will prove so onerous as to discourage cooperation between the public and private sectors will only become clear in the months and years ahead as these new provisions come into force. To that end, the Prime Minister and Treasury Board President have both made clear their hope that this new legislation will be passed before the House of Commons recesses in mid-June 2006.

If nothing else, as the government has itself suggested, the changes and amendments proposed today will almost certainly change the face of government for the foreseeable future.

The Government Relations Group at Borden Ladner Gervais represents clients in their relations with governments in Canada at all levels - Municipal, Regional, Provincial and Federal and with Departments, Boards, Authorities and Agencies of each of those Governments.

BLG professionals bring extensive experience working within the public sector and maintaining excellent contact with key decision-makers. We provide insight with respect to new legislation, assessment of complex policies and identification of key contacts within the public service regardless of department and including appropriate elected officials.

Our services include:

• Monitoring political policy developments
• Analyzing the potential impact of emerging government policy and program changes on clients’ interests
• Preparing briefs, submissions and presentations to governments on behalf of clients
• Creating advocacy campaigns on behalf of clients, including communicating on behalf of clients with government decision-makers
• Developing strategic advice that incorporates political agendas of the day with the technical expertise needed to meet the challenge of any public pronouncements

National Contact:
Colin P. MacDonald (Calgary)
Regional Contacts:
Robert A. Fyfe, (Montreal)
Hon. Gar Knutson (Ottawa)
Jack Hughes (Ottawa)
J. Stephen Andrews (Toronto)
Jeffrey S. Graham (Toronto)
Dirk Laudan (Vancouver

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.