Response of Canada to the Comments of Costa Rica
- SYSTEMS OF GOVERNMENT HIRING AND PROCUREMENT OF GOODS AND SERVICES (ARTICLE III (5) OF THE CONVENTION)
1.1.SYSTEMS OF GOVERNMENT HIRING
Proposal: Apply the system of appointments set by the PSEA (Public Service Employment Act) to all public agencies and offices. (p. 2)
Response: Please see the response to this proposal in Canada’s comments to the draft preliminary report.
Proposal: Implement as regulations the PSEA interpretation guides, so that enforcement of the PSEA is in harmony with its content and so that its statements and principles are not breached through interpretation. (p. 2)
Response:The PSC has several appointment policies (the Appointment Framework) and deputy heads are required to follow these policies pursuant to section 16 of the PSEA.
Proposal: Require each agency to adopt a Descriptive Post Manual, with the essential administrative, technical, or professional profiles of each of the positions that make up its staff. (p. 2)
Response: The Canada Public Service Agency website contains a List of Classification Standards, Point Levels and Ranges:
In addition, statements of qualifications must be developed for every job selection process.
More generally, the Government has in place a Classification System and Delegation of Authority Policy: Policy is designed to ensure that the classification system described in the policy establishes the relative value of all work in the Public Service in an equitable, consistent, efficient and effective manner, and provides a basis for the compensation of Public Service employees. Deputy Heads are authorized to classify positions in their respective departments in accordance with this Treasury Board policy, the appropriate classification standard and the guidelines developed and issued by the Treasury Board Secretariat.
The Guide to Allocating Positions Using the 1999 Occupational Group Definitionsprovides advice on allocating work in the Public Service to occupational groups using the 1999 occupational group definitions. It also provides background information on the nature of the occupational groups and their definitions.
Occupational Group Qualification Standards are available on-line:
A Classification Monitoring Framework has also been put in place:
As well, a Classification Grievances Policy is in place to provide a redress process for employees who are dissatisfied with the classification of the duties they perform as assigned by the Employer. Such grievances are reviewed in detail by qualified persons who were not involved in the making of the classification decision being grieved. They will make a recommendation to the deputy head or the nominee of the deputy head whose decision will be final and binding:
Finally, a process of classification modernization is under way.
Issue: Address the issue of appointments of “temporary officers” (p. 2).
Response: Section 59 of the PSEA allows for terms to be converted to indeterminate positions.Casuals (employed for 90 days or less in a calendar year) are not covered by the PSEA.
1.1.GOVERNMENT SYSTEMS FOR THE PROCUREMENT OF GOODS AND SERVICES
Issue: Elaborate on and clarify Transparency International Canada’s concern as regards the services sector (p. 3).
Response: It is difficult to clarify Transparency International Canada’s (TIC) concern in the context of paragraph three. It appears that the beginning of the paragraph is referring to the provisions of the trade agreements, whereas TIC appears to be referring to the practice of standing offers. If TIC is referring to standing offers, they are competitively let instruments, have a finite life and do not preclude any supplier from bidding.
Issue: This delegation notes the absence from Canada’s report of any effective citizen oversight” … What are Canada’s views on this point? (p. 3).
Response: There are a multitude of avenues and opportunities for citizens and citizen groups to provide oversight to the procurement system. Some examples include:
Procurement System Design
Government-wide Review of Procurement
Canada uses a consultative approach to designing and amending its procurement system. In 2004, a task force, led by the Honourable Walt Lastewka[1], conducted an extensive review of the Canadian federal procurement system with the objective of recommending improvements to produce a “system that is not only faster, simpler and less costly, but also one that has strong ethical foundations”[2]. The review examined: the pre-contractual phase, which includes activities related to requirement definition and procurement planning; the contracting phase, which includes all activities from bid solicitation to contract award; the contract administration phase, which includes activities such as issuing contract amendments, monitoring progress etc; and the post-contractual phase, which includes completion of financial audits, proof of delivery, return of performance bonds, etc.
Based on preliminary research and analysis, the Task Force released a Concepts for Discussion document on its website (September 2004). Submissions and comments were welcomed through the website, meetings with suppliers and suppliers associations, speaking engagements and international visits. Submissions to the website were received from individuals and organizations inside and outside of government within Canada and without. In total, 17 major private sector purchasers were interviewed to understand their procurement practices; thirteen trade associations, representing government suppliers provided their views, suggestions and criticisms; 250 public servants provided views and suggestions; and academics from four countries were consulted.
Regulatory Process
Another example of citizen input regarding the design of the procurement system is the mandatory requirement to publish proposed regulations in the Canada Gazette for the explicit purpose of seeking public response. The Canada Gazette is the official publication of the Government of Canada. Published regularly by the Queen's Printer since 1841, the Canada Gazette serves as public notice of government initiatives with regard to legislation, regulations, etc. Pre-publication gives various interested groups and individuals, and Canadians in general, a final opportunity to review and comment on a regulatory proposal at the last stages of the regulation-making process. Pre-publication also gives interested parties the opportunity to see how the final draft proposal is in keeping with previous consultation drafts. When draft regulations are pre-published, interested persons are allowed a period of time to express their views. The standard period is usually 30 days.
Pre-publication in the Canada Gazette, Part I, supplements departmental consultation mechanisms, and contributes to transparency in the regulatory process. It offers a further opportunity for public comment and input.
An example, of this consultative approach to making regulations is a proposal to amend the Government Contracts Regulations. On September 29, 2007, Canada provided notice of the proposed regulations as evidenced by the link below.Interested persons were invited to make representations concerning the proposed Regulations within 30 days after the date of publication of the notice.
The proposed regulations emanate from the Federal Accountability Act which involved extensive consultations and public involvement. Dozens of witnesses were called to two parliamentary committees studying Bill C-2,. The committees held over 40 meetings during 2006 and Parliamentarians debated Bill C-2 for 22 days before passing it.
Office for Small and Medium Sized Enterprises (OSME)
In late 2005, the newly formed OSME conducted consultations with SMEs through six workshops for small company suppliers to the government. At the workshops, SMEs were given the means to identify their concerns with respect to government procurement and their proposals for how these concerns could be addressed. The consultations proved to be a very useful means to discuss plans for procurement transformation, to gain insights from SMEs on possible and perceived impacts on them, and to develop a better understanding of the department's role in ensuring that SME suppliers are treated fairly in government procurement.
Transactional Oversight
Canada’s bid review mechanism for trade agreement covered procurement is the Canadian International Trade Tribunal (CITT). Within five working days from the filing of a complaint, the Tribunal must decide whether or not to conduct an inquiry. In all cases, a notice of inquiry is published on the Government Electronic Tendering Service and in the Canada Gazette. An interested party may, with leave of the Tribunal, intervene in any proceedings before the Tribunal.
Public Accounts Committee
A committee is a group of Members of Parliament (usually 16) chosen by the House of Commons to study a subject or legislation. Committees regularly invite private individuals, experts, representatives of groups and organizations, lobbyists, public servants and ministers of the Crown to appear before them in order to elicit information relevant to the study currently under consideration. The proceedings of Standing Committees are broadcast across the country as it is mandatory that every cable and satellite package contain this feature.
When the committee has completed its consideration of a matter, or a part thereof, it may present its findings, recommendations or decisions in the form of a report to the House. Committees can have considerable influence on policy formation and decision-making in the House of Commons.
The Public Accounts Committee is responsible for reviewing matters with respect to procurement as it is mandated to focus on:
- the economy, efficiency and effectiveness of government administration;
- the quality of administrative practices in the delivery of federal programs; and
- government’s accountability to Parliament with regard to federal spending.
Self-Appointed Assessments
Transparency International-Canada is a member of civil society and has provided the Committee of Experts with its assessment of Canada’s procurement system.
Proposal: Adopt, as promptly as possible, regulations to the Act creating the Procurement Ombudsman, so the ombudsman can begin work as soon as possible. (p. 4)
Response: The appointment of the Procurement Ombudsman received Royal Assent on May 1, 2008. The regulations will be published in the Canada Gazette on May 14, 2008.
Proposal: Within the regulations to the act creating the Procurement Ombudsman, set the bases necessary for a priori control over contracting procedures. (p. 4)
Response: The powers are anticipated to reflect an amendment to the Department of Public Works and Government Services Act not yet in force and include the following general duties and functions:
The Procurement Ombudsman shall, in accordance with the regulations,
(a) review the practices of departments for acquiring materiel and services to assess their fairness, openness and transparency and make any appropriate recommendations to the relevant department for the improvement of those practices;
(b) review any complaint respecting the compliance with any regulations made under the Financial Administration Act of the award of a contract for the acquisition of materiel or services by a department to which the Agreement, as defined in section 2 of the Agreement on Internal Trade Implementation Act, would apply if the value of the contract were not less than the amount referred to in article 502 of that Agreement;
(c) review any complaint respecting the administration of a contract for the acquisition of materiel or services by a department; and
(d) ensure that an alternative dispute resolution process is provided, on request of each party to such a contract.
Details with respect to these powers, including the power of recommendations, will be contained in the regulations.
- SYSTEMS FOR PROTECTING PUBLIC SERVANTS AND PRIVATE CITIZENS WHO, IN GOOD FAITH, REPORT ACTS OF CORRUPTION (ARTICLE III (8) OF THE CONVENTION)
Issue: Whether the Canadian regulations establish any sort of sanction applicable to the officials responsible for creating the procedures, in the event that they do not observe that obligation and fail to establish them? (p. 4)
Response: The requirement to implement specific sections of the Public Servants Disclosure Protection Act (PSDPA) is measured through the Values and Ethics component of the Management Accountability Framework. Furthermore, pursuant to section 38 of the PSDPA, the Canada Public Service Agency is required to prepare an annual report to Parliament, where an organization’s failure to establish disclosure procedures could be noted. The organization could be required to account to a parliamentary standing committee regarding the discrepancy.
The Criminal Code provides a general legislative sanction related to any failure to implement a requirement of an Act of Parliament. Section 126 provides:
126. (1) Every one who, without lawful excuse, contravenes an Act of Parliament by wilfully doing anything that it forbids or by wilfully omitting to do anything that it requires to be done [emphasis added] is, unless a punishment is expressly provided by law, guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) Any proceedings in respect of a contravention of or conspiracy to contravene an Act mentioned in subsection (1), other than this Act, may be instituted at the instance of the Government of Canada and conducted by or on behalf of that Government.
Issue: Whether each institution can have its own internal procedure for reporting irregularities, or whether there is a uniform procedure for all public institutions? (p. 4)
Response: Under section 10, the PSDPA requires each chief executive to establish procedures to manage disclosures made under the Act as it applies to their organization and to designate a senior officer to be responsible for receiving and dealing with disclosures within that organization. The procedures may vary from organization to organization.
Issue: Whether Canadian law provides any punishments for persons who disclose information in contravention of section 11 of the Witness Protection Program Act? (p. 5)
Response: Section 21 of the Witness Protection Program Act makes it an offence to disclose such information and provides a punishment for those who contravene section 11:
21.Every person who contravenes subsection 11(1) is guilty of an offence and liable
(a) on conviction on indictment, to a fine not exceeding $50,000 or to imprisonment for a term not exceeding five years, or to both; or
(b) on summary conviction, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding two years, or to both.
Issue: Whether the Criminal Code establishes a similar provision for cases arising in the public sector? (p. 5)
Response: Footnote 137 refers to section 42.1 of the Public Servants Disclosure Protection Act. This provision does not apply to the Criminal Code. There is no similar provision in relation to section 425.1 of the Criminal Code. Therefore, section 425.1 applies to employers in both the public and private sectors.
Issue: When did the Witness Protection Program Act come into force? (p. 5)
Response: The Witness Protection Program Act has been in force since 1996, hence the availability of results for the periods 2004-2005 and 2005-2006 in the Annual Report mandated by section 16 of the Act. The results provided in the table are cases under the Witness Protection Program Act.
- ACTS OF CORRUPTION (ARTICLE VI OF THE CONVENTION)
Issue: Sanction for paragraph 121(1)(c) of the Criminal Code. (p. 6)
Response:All offences under section 121 are indictable offences and carry a maximum penalty of five years of imprisonment, as indicated in our Questionnaire Response.
Issue: Definition of an “official” (p. 6)
Response:The definition of “official” includes a person appointed to discharge a public duty (in French, “pour remplir une fonction publique”). As has been described by Mr. Justice Berger in R. v. Yellow Old Woman (D.) (2003), 339 A.R. 302 (C.A.):
In my opinion, the decision of the Supreme Court of Canada in R. v. Sheets [1971] S.C.R. 614, is dispositive of the issue. The definition of ‘office’ in s. 118 is not a closed list confined to people who hold office with the federal or provincial government. The Court held that the use of the term ‘office’ in what is now s. 118 of the Criminal Code ought to be interpreted to include ‘a position of duty, trust or authority, esp. in the public service or in some corporation, society or the like’ (cf. The New Century Dictionary) or a ‘position to which certain duties are attached, esp. a place of trust, authority or service under constituted authority’ (cf. The Shorter Oxford Dictionary).
In addition, section 426 applies to active and passive bribery in both the public and private sectors. Further, other offences apply, such as theft (s. 322), fraud (s. 380), obstructing justice (s. 139) and extortion (s. 346). As well, there are a number of offences that address the improper use of privileged information.
Issue: Clarity sought with respect to paragraph 119(1)(a) of the Criminal Code, which deals with judges and legislators. (p. 6)
Response:Corruption in the public sector is covered by a number of offences in the Criminal Code. Some are of a more general nature, while others are of a more specific nature and are tailored to specific groups and activities and also provide in some cases for a higher penalty. As the Supreme Court of Canada noted in R. v. Prince, [1986] 2 S.C.R. 480:
…Parliament may create offences of varying degrees of generality, with the objective (vis-à-vis the more general offence) of ensuring that criminal conduct will not escape punishment because of a failure of the drafters to think of each individual circumstance in which the conduct might be committed, or with the objective (vis-à-vis the more specific offence) of addressing with certainty particular conduct in particular circumstances.
Section 119 applies to judges and federal and provincial legislators and carries a maximum penalty of 14 years. Other provisions apply to other employees of the public administration, such as sections 120, 121, 122, 123 and 426.
Issue: The breadth of the concept of “valuable consideration”, and the word “advantage”. (pp. 6 and 7)
Response: As mentioned above,corruption in the public sector is covered by a number of offences in the Criminal Code. In sections 119 and 120, the bribe consists of money, valuable consideration, office, place or employment. In some offences under section 121, the bribe consists ofa commission, reward, advantage or benefit of any kind as consideration. In other offences of section 121 and in section 426, the bribe or secret commission consists of a reward, advantage or benefit of any kind as consideration. In section 123, the bribe consists of a loan, reward, advantage or benefit of any kind as consideration.
However, in all the offences, the enumeration includes at least one word that applies to something of value given in exchange for a service, whether it is “valuable consideration” in sections 119 and 120, or “benefit” or “advantage” in sections 121,123 and 426. Therefore, even if the list itself is not uniform, it amounts to the same thing: something of value constitutes a bribe when it is given as a consideration for an act or omission. This is the same meaning as “valuable consideration”. Indeed, in R.v.Arnold, [1992] 2 S.C.R. 208, Mr. Justice Sopinka used the term “valuable consideration”as a compendious term when speaking of the elements (i.e. a reward, advantage or benefit of any kind)in relation to section 426.