I acted as commissioner for the Construction Industry Inquiry Commission (CEIC), commonly known as the Charbonneau Commission, following a decree in November 2011. Previously, I held the position of auditor General of Quebec, from 2004 to 2011, recommended once by the government of the Parti Québécois, then a second time by the government of the Liberal Party. I have never been a member of a political party, except in 1981 and 1982 to support Mr. Lévesque for his re-election and for what was then called the “renerendum”.
My disagreement with the provincial level
I refrained from any public intervention after the tabling of the final report of the Commission so as not to intervene in the investigations in progress or to be quoted in an electoral campaign or in the leadership of a party. Now that all that is over and the president has given her point of view in public interventions, I can also give mine. That’s what I’m doing with this post.
I expressed my disagreement with a single chapter of the report, namely the one where it asserts the existence of an indirect link between political financing at the provincial level (a contribution to a candidate, an elected official or a party) and the obtaining by a contractor or an engineer of a public contract in the field of construction. In my view, no evidence heard at the Commission supports this assertion.
On the contrary, a witness said that he did not obtain any advantage after paying his political contribution to the provincial government. Another witness said he was threatened with fewer Hydro-Quebec (HQ) contracts if he did not increase his political contributions. Yet, even though he didn’t, he didn’t experience any downside after that threat.
It is a heavy assertion to say that there is an indirect link between the payment of a political contribution at the provincial level and the obtaining of a public contract in construction or engineering without any witness to confirm this. . This is the reason for my disagreement.
In addition to having no evidence to support this claim, it has two unfortunate consequences.
The first is that it obscures the fact that, since the early 1960s, all governments, whether Liberal, PQ or CAQ, supported by competent civil servants, have made many efforts to depoliticize the granting and management public contracts obtained thanks to the payment of a political contribution, as was seen under the regime of Maurice Duplessis. Laws, regulations, administrative processes and the creation of public organizations, the latest of which is the Public Procurement Authority (AMP), have been put in place to depoliticize the awarding and management of public contracts at the provincial level. and ensure better monitoring.
Yes, those who obtained public contracts were asked, even harassed, to make a political contribution. But they did not obtain — even indirectly — a contract thanks to it, according to my interpretation of the testimony heard at the Commission.
The second unfortunate consequence is the cynicism toward the political class expressed by some citizens. The affirmation of an indirect link, without supporting testimony, feeds this cynicism and encourages the denigration of Quebec (Quebec bashing) outside, as shown by the Maclean’s in 2010 with its front page claiming that Quebec is the most corrupt province in Canada, information later taken up by the New York Times. Many were offended by this front page displaying Bonhomme Carnaval, including the Quebec Press Council.
Some people supported my disagreement publicly, others did so in private. I also know that my position did not please everyone, but you have to have the evidence to support such a weighty assertion. From my point of view, the testimony heard at the Commission did not support it. Nor are the results of the investigations.
At the municipal level
Here, I submit an answer, which can be debated, to the following question: why have we found so many cases of corruption and collusion in the municipal apparatus, and nothing really serious at the provincial level? Mainly for two reasons.
The first one ? Municipal elected officials participate in the process of awarding contracts by approving them by resolution of the municipal council. Their proximity to the administrative apparatus facilitates the possibility of influencing it. Imagine the discretionary power of a mayor who controls his municipal council 100%, who approves contracts, also controls his administrative apparatus and whose reign seems eternal. What immense power he has! I don’t need to name names, I guess…
The concentration of power is particularly conducive to corruption and collusion, with or without the consent of elected municipal officials. Hence the need for contractors to maintain them well… If you add that they approve of zoning changes, then you have the optimal context for making political contributions to all prominent candidates, paying bribes -wine, ability to organize collusion and elections and various sunny pleasures.
The second reason? The federal regulator responsible for detecting and investigating collusion in public contracts, the Competition Bureau of Canada (BCC), was not doing any serious work on this issue in the construction sector before and during the period of analysis of the Commission’s work.
However, the BCC has the responsibility to monitor bid-rigging, price fixing and agreements between competitors. I met representatives of the BCC on two occasions at the start of the Commission. Well-intentioned, they confirmed to me that budget cuts had reduced their ability to investigate. Elsewhere, countries carry out extensive analyzes to detect signs of collusion. The BCC did not do any, and was not able to help the Commission do any.
Recommending the creation of the Public Procurement Authority (AMP) stems from this deficiency. The aim was to bring together and increase control resources throughout government entities so that they are more effective than the BCC, but above all to assist public contractors at the municipal level. It is impossible for a village or a city, unless it is large, to acquire the capacity to analyze possible indications of collusion in its market. It was necessary to create and concentrate this capacity at the provincial level and give it authority over all public work providers in order to increase it.
The Couillard government acted on this flagship recommendation of the Commission. The Legault government has increased its powers with Bill 12. Public work providers are now supported by a national organization that can intervene if there are signs of collusion.
Political financing
Several testimonies have proven the existence of the figurehead scheme in political financing, both at the municipal and provincial levels.
This scheme had been known for a long time, long before the work of the Commission. It essentially consists of asking a person to contribute to a municipal or provincial political party, to then be reimbursed by their employer or by another person who may or may not be a political organizer. This contribution also had the advantage of giving rise to tax credits.
Deeming the scheme marginal, the Chief Electoral Officer (DGE) decided not to conduct an in-depth investigation. A political attaché admitted in a hearing at the Commission the possibility of using nominees to obtain financing. He even suggested names to a potential contributor suggested by a former MP. Another witness discussed the possibility of reallocating an excess contribution to other members of his family. In short, the scheme of nominees had been known for a long time, and by many, probably.
So the question arises: why did the CEO not carry out an exhaustive investigation into this scheme, which obviously flouted the Elections Act when he had the financial means, because he himself decides on his own budget ?
I share here my thoughts based on testimonies from people who served as nominees and analyzes carried out by the Commission, emphasizing that it was not within its mandate to assess the extent of this scheme. First, more than one provincial political party knew about this scheme, so why did it last so long? You should know that the DGE is advised by an Advisory Committee made up only of elected members of the National Assembly. This advisory committee could have suggested to the CEO to carry out an exhaustive investigation. No evidence of such a request has been filed with the Commission. The presence in this committee of experts independent of the parties would probably have prompted the DGE to carry out an in-depth and transparent investigation into this scheme, especially after having received a letter from the President of the National Assembly at the time, Jean-Pierre Charbonneau, s ‘while worrying.
Transparency and objectivity
The Commission made recommendations to make the issue of political financing at the provincial level more transparent, more objective and more accountable. I discuss two here.
First, by recommending that the Advisory Committee to the CEO be also composed of non-elected persons, independent of political parties and appointed by the CEO. Unfortunately, this recommendation has not yet been implemented.
Then, by recommending to hear the CEO each year in a parliamentary committee as required by law. This annual hearing could have enabled the CEO to discuss this scheme more often and the media to learn about it. This Commission recommendation was finally implemented as already provided for by law.
The rules of political financing have been profoundly changed in recent years. The figurehead scheme probably doesn’t matter as much as it used to. From my point of view, the Commission has done useful work through its hearings, its analyzes and its recommendations to counter the scheme of the nominees.
A few other brief comments
The death of the third Commissioner, a renowned jurist from McGill University, was a huge loss for the Commission. His non-replacement was a mistake, as it did not allow for a broader discussion between the Commissioners.
The commissioners draw on the work of investigators and prosecutors for their conclusions. They do not go into the field, except for the analyzes and the development of recommendations.
Commission costs are less than the amounts reimbursed by contractors and engineering firms to cities and the state. In itself, the Commission has paid for itself, but, more importantly, it has enabled the State to adopt new laws and new regulations and an organization that better monitors and regulates the awarding and management of public contracts. in the construction sector.
More than half of the recommendations of the Charbonneau Commission have been fully or partially implemented, according to an independent committee of the Commission. Thank you to the members and analysts of this committee for doing this follow-up.