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Percy Downe

The Hon. Percy E. Downe, B.A. Senator Percy E. Downe was appointed to the Senate of Canada by the Right Honourable Jean Chrétien. He has served in the Senate representing Charlottetown in the province of Prince Edward Island since June 26, 2003.

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Auditor General - Motion to Approve Appointment

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Statement made on 03 November 2011 by Senator James Cowan

Hon. James S. Cowan (Leader of the Opposition):

Honourable senators, we have been asked, pursuant to the Auditor General Act, to approve the appointment of Mr. Michael Ferguson as Canada's Auditor General for the next 10 years.

As this chamber has heard, Mr. Ferguson served as Auditor General of the Province of New Brunswick. He left that position after 5 years of a 10-year term to accept the invitation of his Premier to serve as Deputy Minister of Finance. Let me be clear, and I confirm what Senator Banks said a moment ago: Everything I have heard and read supports the conclusion that Mr. Ferguson served the Province of New Brunswick capably and well as Auditor General and continues to do so as Deputy Minister of Finance.

My issue, and that of my colleagues on this side of the chamber, does not relate to what is in Mr. Ferguson's c.v. but rather what is not. It also relates to the fundamentally flawed process that resulted in his nomination by this government as Canada's next Auditor General.

My concerns and our concerns are not with Mr. Ferguson, but with this government and how it handled the selection process for this very senior and critically important officer of Parliament.

As everyone knows, the previous Auditor General of Canada, Ms. Sheila Fraser, retired from that position earlier this year at the conclusion of her 10-year term. In October 2010, the government properly published a notice of vacancy in the Canada Gazette, advertising for candidates to fill the position. That notice was quite lengthy. It detailed a number of skills and qualifications that the successful candidate should have and then it stated, and this is the critical point, "proficiency in both official languages is essential."

In French the words were: "La maîtrise des deux langues officielles est essentielle."

"Essential" is the word that was used. The notice did not say, as did the notice of vacancy for the position of the Commissioner of the RCMP, for example, that the ideal candidate should be proficient in both official languages. It did not say that proficiency in both official languages was essential sometime in the future after extensive language training. Rather, it called for proficiency now, today. That requirement was identified as essential. In other words, honourable senators, it was non-negotiable. That is how it should be.

I have looked through many notices of vacancy published by this government over the past few years. There were notices for officers of Parliament and positions that some have likened to officers of Parliament. Without exception, those notices demanded present proficiency in both official languages.

Honourable senators, bilingualism is at the very core of who we are as a nation. It has been and remains a defining issue for us in the Liberal Party of Canada. Frankly, I should have thought by now that we were past the stage where any party would take issue with that absolutely fundamental principle.

It does not mean that everyone everywhere in this country has to speak both languages, but it does mean that Canadians have the right to demand that people who hold certain offices in this country will be fluent in both languages. Among those positions, honourable senators, are our officers of Parliament.

As a unilingual, anglophone parliamentarian, I expect and have the right to be able to speak directly with any officer of Parliament in English. I absolutely respect that, equally, my francophone colleagues expect and have the same right to speak directly to any officer of Parliament in French.

The Harper government has decided to put forward, as a candidate for Auditor General of Canada, an individual who cannot deal equally with all parliamentarians, much less all Canadians.

In the other place, my colleague, Mauril Bélanger, tried to speak to Mr. Ferguson without the intervention of an interpreter. Mr. Ferguson could not understand what Mr. Bélanger said. Mr. Bélanger tried to encourage Mr. Ferguson to speak in French without reading from a prepared text. Mr. Ferguson could not. Mr. Ferguson readily acknowledged to us here the other day that he is not proficient in both official languages.

In other words, honourable senators, in putting forward Mr. Ferguson as its nominee, the government was ignoring one of the few requirements that it, itself, had said was essential for this position. Not only was the government prepared to ignore and bypass its own stated essential criteria for this very high position, but then it tried to slip that fact past the parliamentarians to whom the Auditor General reports.

Under the Auditor General Act, and as a further indication of the very special role of an officer of Parliament, the Prime Minister is required to consult with the leader of every recognized party in the Senate and in the House of Commons, as well as to obtain approval of the appointment by a resolution of the Senate and the House of Commons — the question we are now debating — before the appointment is made.

On August 31, Prime Minister Harper wrote to me advising me of his nomination of Mr. Ferguson. Nowhere in that letter, nor in the attached c.v., was there any suggestion that Mr. Ferguson failed to satisfy all of the essential requirements that the government had set forth for that position. Indeed, his c.v., which was attached to Mr. Harper's letter, was in both official languages. I now realize that the French version could not have been prepared by Mr. Ferguson.

Nothing that the Prime Minister provided to me as he sought my views indicated that Mr. Ferguson was not and is not proficient in French. Honourable senators, this was a critical fact that was omitted, and I would suggest deliberately omitted, from the information presented to me and the other party leaders. I, of course, was prevented from inquiring too closely before replying to the Prime Minister, because his letter cautioned that the matter needed to be dealt with in confidence prior to the announcements — something which I, of course, respected.

This is wrong, honourable senators. This is not how one goes about appointing someone to one of the most senior, important positions in the land. You do not skip over a missing critical requirement of a position and then blithely ignore it, hoping no one will find out.

Last week, when we started to hear rumours that, in fact, Mr. Ferguson was not proficient in both official languages, we devoted two question periods to the issue. We read into the record the statement in the notice of vacancy that clearly provided that proficiency or mastery in both official languages is essential.

The Leader of the Government in the Senate indicated she had not seen the document. I gave her my own copy so she could see for herself. We asked how it was that a unilingual candidate had been nominated, contrary to the stated requirements. We asked about the timeline, wanting to know when the language requirements had been changed and whether that change had been communicated to other potential applicants. The Leader of the Government was unable to answer many of our questions.

Accordingly, we requested that the Clerk of the Privy Council appear before us in Committee of the Whole to answer these questions. We were told that the clerk was unavailable but that two senior public officials with knowledge of the process would appear instead. These two officials, as honourable senators will recall, did appear here on Tuesday. They confirmed what we had suspected from the beginning.

Indeed, the notice of vacancy set out that proficiency in both official languages was an essential requirement, and this was done because the selection committee, chaired by the President of the Treasury Board, himself a member of cabinet, "felt it was a very reasonable criterion for the Auditor General of Canada."

As Ms. Patricia Hassard testified, the entire Selection Committee supported this requirement. She pointed out that this was part of the notice of job vacancy for the previous Auditor General. In fact, honourable senators, I would note that Canada has had fully bilingual Auditors General going back more than two decades.

We then heard something very strange. Notwithstanding the statement that this was an essential requirement, the search firm retained by the Selection Committee advised at least one applicant — Mr. Ferguson — that in fact "essential" did not mean "essential," but rather there was some "flexibility." As he told us, "there could be some time for a candidate to achieve that proficiency once appointed."

Honourable senators, the search firm the government engaged is a highly experienced one. I can only assume that it had been instructed by the Selection Committee to make that statement. This was not a change that any reputable firm would make without instructions.

Honourable senators, I was disturbed to realize that this critical change — a change to something that had been listed as an "essential" qualification, one of the very few "essential" qualifications set out in the long notice — was never made officially. It was never publicized, and the position was never re-advertised.

On October 27, Maria Barrados, President of the Public Service Commission, testified before the Standing Committee on Government Operations and Estimates in the other place. She was asked what happens in the public service if the requirements for a position are changed over the course of a search for someone to fill that position. She was very clear. She said, "If they do change, you have to start again."

Of course, honourable senators, that only makes sense. Who knows what other highly qualified individuals may have chosen not to apply for the Auditor General position because they were not themselves proficient in both official languages; yet, this government did not start over again and they did not re-advertise the position.

Ms. Barrados was asked specifically about language requirements. She described how in the public service "essential" means "essential." However, we know what happened here. Mr. Ferguson could not and cannot meet the language requirement, so somehow the requirement was changed. This would not have happened in the public service. Ms. Barrados was very clear: "If you don't meet the language requirement, you don't get the job." Period.

The officials who testified before us on Tuesday tried to tell us that the position of Auditor General is not under the rules of the Public Service of Canada. As an officer of Parliament, those policies would not apply.

Honourable senators, surely this is not an answer. Why would the process by which we select officers of Parliament be any less rigorous than the process that ordinary Canadians apply for, are guided by and are judged by in the public service?

The officials tried vainly to defend the government's actions. They told us that in fact many qualified candidates were not interested in the job. The salary, we were told, was too low. The position of Auditor General of Canada, one that carries the highest respect from Canadians throughout the land, brings a salary of $323,000 per year for 10 years. That is $3.2 million. I find it disingenuous to try to say that the salary dissuaded all other public-spirited Canadians from this position. Governments in the past did not have any such difficulty. I am forced to wonder whether the real problem relates to this government's treatment of independent watchdogs.

We all know the sorry record: the late-night firing of the President of the Canadian Nuclear Safety Commission; the ousting of Paul Kennedy from his position as Chair of the Commission for Public Complaints Against the RCMP; refusing to extend Peter Tinsley's term as Chair of the Military Police Complaints Commission in the middle of its inquiry into the treatment of Afghan detainees; the ouster of the RCMP chief superintendent who had been the head of the Canadian Firearms Program but inconveniently supported the gun registry; the failure to renew Pat Stogran's term as Veterans Ombudsman — and the list goes on and on. Perhaps this sorry record explains why the government had difficulty finding a fully qualified candidate prepared to stand for the position of Auditor General of Canada.

Honourable senators, this government, as Prime Minister Harper has openly stated, makes its own rules. It chose as its nominee someone who admits that he cannot carry on a conversation in French, who cannot understand French when it is spoken to him and who cannot speak French except from notes that someone has prepared for him. The government then brought forward this nominee, knowing that a requirement that it had identified as "essential" was not fulfilled, and it did so without informing other potential applicants that this requirement was no longer essential, without informing party leaders that this critical qualification was missing and without informing parliamentarians and Canadians at large that this high officer of Parliament would not be able to communicate with them in the language of their choice.

Questions have been raised about whether under the Official Languages Act the Auditor General is required by law to be proficient in both English and French. As my colleague Senator Joyal powerfully pointed out in his exchanges on Tuesday, there are very serious questions, not simply about the process that is being followed, but there is serious doubt as to the legality of what this government is doing. These are questions that may fall to the courts to decide.

What is unalterable and irrefutable is that the process by which Mr. Ferguson's name was brought forward is deeply flawed, so flawed that as responsible parliamentarians, we on this side cannot accept the outcome.

As I explained last week when speaking of Senator Murray's contribution to public life, process matters; it is not a mere technicality.

We looked to see whether any amendment of the resolution was possible. We considered changing the effective date of the appointment to a date when Mr. Ferguson attains the CCC, not CBC, levels in French, those levels required of senior public servants. However, we concluded that the entire process in this case was so fundamentally flawed that it could not be saved by any amendment.

Honourable senators, let me recapitulate what the Harper government is proposing here. They want to give Canadians an Auditor General who for the first time in over 20 years is not fluently bilingual. This is not acceptable in 2011. Let us be clear: For the federal government, bilingualism is not just an afterthought; it is not a little inconvenient box on a form to be ignored. It is part of who we are. It is a matter of fundamental respect for our fellow Canadians, for our history, for our identity, for our present and for our future.

More than 40 years ago, Parliament passed the Official Languages Act, an act that is so important in this country that it has been recognized by the Supreme Court as having quasi-constitutional status. That act recognizes that in Canada, both English- and French-speaking Canadians have certain rights in dealing with their federal government.

Let me remind honourable senators that there are some 7 million francophones in this country. For 40 years, successive governments, Liberal and Progressive Conservative alike, have put in place policies to protect the right of federal employees to work in the language of their choice, English or French, and to ensure that in the Government of Canada no one —

Hon. Claude Carignan (Deputy Leader of the Government): Honourable senators, I rise on a point of order. Someone took a picture in the gallery.

I would like someone to ensure that order is maintained in the gallery, please.

The Hon. the Speaker: Could the Black Rod secure the gallery and empty the north gallery?

Senator Cowan: Do you wish me to wait until your order is complied with, Your Honour?

The Hon. the Speaker: Yes. Thank you, senator.

Senator Cowan: As I said, for 40 years, successive governments of both political stripes, Liberal and Progressive Conservative alike, have put in place policies to protect the right of federal employees to work in the language of their choice, English or French, and to ensure that in the Government of Canada no one is a second-class citizen — anglophone or francophone, all are equal.

Today, employees have a right — a right, honourable senators — to meet with their superiors and speak in the language of their choice — the employees' choice, not the boss's. Mr. Ferguson admitted that he will not be able to do that. Senator Fraser asked what he would do if a francophone employee wished to meet with him privately to discuss a matter in confidence. He said he would not be able to do it.

Honourable senators, there is another problem. Employees have a right to work in the official language of their choice. There are undoubtedly thousands of memoranda and documents across the federal government that are only in French. As Auditor General, Mr. Ferguson would be expected to be able to read and understand any document relevant to an audit he is conducting, yet he is incapable of reviewing documents in French. He cannot now do the job. He would have to rely completely on others to do it for him.

Mr. Ferguson has said repeatedly that he appreciates the importance of the Auditor General being proficient in both languages and expressed his personal commitment to achieve this. I accept that Mr. Ferguson has the best of intentions. My issue is with the decision of the Selection Committee and then the Prime Minister in accepting "intention" as a satisfactory substitute for ability, particularly on a matter so critical to how we define ourselves as a nation.

Mr. Ferguson has served for 25 years in the public service of New Brunswick, Canada's only officially bilingual province. He rose to hold high positions — Auditor General and now Deputy Minister of Finance — yet he either never took the time or never succeeded in becoming proficient in French in 25 years.

He told us that his language skills have been assessed, but he could not remember what the score was. He was informed that he would need 1,200 hours to achieve his desired fluency goals. He said he estimates that he can accomplish this in approximately one year.

Mr. Ferguson received this news in February and has been working at French since then. It is now November, some eight or nine months later. We all saw very clearly that he is still not able to carry on a conversation or understand French when it is spoken to him.

I am also concerned about the implications of appointing someone as Canada's next Auditor General who plans to devote at least 1,200 hours in the first year to studying French. If he were to work full time, 40 hours a week studying French, he would be spending 30 weeks on nothing but French language training.

A cynic might ask whether this government has intentionally put forward someone to serve as Auditor General who will be so busy learning French that he will not have time to investigate things like $50 million approved for Canadian border crossings but spent on gazebos and community centres hundreds of miles from any border and, in fact, in the riding of the President of the Treasury Board, Tony Clement, who, coincidently, chaired the Selection Committee for the Auditor General.

Given the recent actions of Minister Clement, it is clear that we need an alert, focused, full-time, diligent Auditor General in this country. How many more millions of taxpayer dollars would this government waste and lavish on its friends if it knew that the Auditor General was not paying attention?

There is another matter that I must raise. My colleague opposite, Senator Brown, tried the other day to suggest that the Auditor General is really a bookkeeper who does not need to read words, just add numbers. That is simply wrong. A critical role of the Auditor General is to determine whether the government has, in fact, complied with laws, rules and policies, or whether it was prepared to gloss over requirements in particular cases. That was the issue in the audit conducted on the G8 Legacy Infrastructure Fund. There it was the Auditor General who uncovered the Treasury Board president's misspending of taxpayer dollars in his own riding, and his flouting of the rules and safeguards around how taxpayer dollars are to be spent. Minister Clement evidently set up a parallel system, operated out of his own constituency office.

How can we have confidence that Mr. Ferguson, who is prepared to accept an appointment that is the result of such a manipulated process — a process that flatly ignored a requirement stated to be essential — will rigorously carry out the duties and responsibilities of Auditor General when assessing other policies and accounting principles that are deemed to be "essential"? Policies and criteria were quietly set aside for his nomination to proceed, but is that not exactly the kind of government activity parliamentarians and Canadians look to the Auditor General to uncover and condemn?

Honourable senators, we face a highly unusual and, I believe, unprecedented situation here. It appears likely that the government's nominee will be rejected by every opposition party in both houses of Parliament, not only the recognized parties in the other place but also the Bloc Québécois and the Green Party members. All agree that Mr. Ferguson should not be appointed to serve as Auditor General of Canada.

How will Mr. Ferguson be able to function effectively, and how will he be able to command the confidence of Parliament without being able to gain the confidence and support of a single opposition party and, frankly, of even a single opposition member in either chamber?

What does this mean for Canadian democracy? This is a new low, honourable senators, from a government that has already entered the history books as the first government in a British parliamentary democracy to be found in contempt of Parliament. An officer of Parliament is the servant of Parliament. He or she answers to, serves and reports to Parliament — not to the government, but to Parliament. The essence of the role of any officer of Parliament is to assist parliamentarians in their duty to hold the government to account.

However, this government has turned the concept upside down, whipping its majority in line to impose an officer of Parliament, the Auditor General of Canada, on parliamentarians who reject that choice, on parliamentarians who will not be able to sit down and speak with the person who supposedly answers to them because he does not understand the language they speak.

Honourable senators, for all these reasons, my colleagues and I on this side of the chamber will participate no further in the process or in the vote to come. To continue with this travesty of a process would be to confer on it a legitimacy that it does not deserve. It is indefensible; it is wrong.

All of us in this chamber who genuinely believe in the importance of our two founding and official languages must publicly display the strength of that conviction by joining together to send a clear message to this government that these fundamental principles which define us as a nation must be respected.

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