Public Procurement and the Charbonneau Commission: Challenges in Preventing and Controlling Corruption

AuthorSarah Chaster
PositionCompleted her BA at the University of British Columbia and her JD at the University of Victoria, graduating in 2017
Pages121-148
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ARTICLE
PUBLIC PROCUREMENT AND THE
CHARBONNEAU COMMISSION:
CHALLENGES IN PREVENTING AND
CONTROLLING CORRUPTION
Sarah Chaster *
CITED: (2018) 23 Appeal 121
INTRODUCTION.................................................122
I. AN OVERVIEW OF PUBLIC PROCUREMENT .....................123
II. PUBLIC INQUIRIES AND THE QUEBEC CONTEXT................125
A. Public Inquiries Generally .......................................125
B. Corruption in the Quebec Context ................................126
III. THE CHARBONNEAU COMMISSION, REPORT, AND
RECOMMENDATIONS .........................................129
A. e Charbonneau Commission ...................................129
B. e Charbonneau Report........................................131
C. e Charbonneau Recommendations ..............................131
i. Action Strategies ...........................................132
ii. Recommendations Regarding Public Procurement ..................132
iii. Recommendations Regarding Sanctions, Political Financing, Citizen
Participation, and Condence in Public Ocials...................134
IV. RESPONSES TO THE CHARBONNEAU REPORT...................137
A. Implementation, Reaction, and Criticism ...........................137
B. Legislative Responses to the Charbonneau Report .....................138
i. e Integrity in Public Contracts Act .............................139
ii. Quebec’s Bill 108 ...........................................141
iii. Quebec’s Voluntary Reimbursement Program .....................142
V. A COMPARATIVE ANALYSIS WITH FEDERAL AND INTERNATIONAL
PROCUREMENT...............................................142
A. Federal Public Procurement Regime................................142
B. International Public Procurement Standards .........................146
CONCLUSION ...................................................147
* Sarah Chaster completed he r BA at the University of British Columbia a nd her JD at the
University of Victo ria, graduating in 2017. She sincerely thanks Professor Gerry Fergu son
(University of Victo ria, Faculty of Law) for his support an d assistance with this paper.
She is currently clerking f or Chief Justice Richard Wagner at the Suprem e Court of Canada,
though the opinions she ex presses in this article are hers, an d they do not represent the
opinions of the Court—o r reect her work at the Court.
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INTRODUCTION
Corruption is an insidious problem which has long plagued our so ciety. Its frequently
unseen mechan isms and destruc tive consequences ripple from small, local stag es to a
vast, global sca le. Its costs range from fractured fa ith in public adminis tration, deep
ineciencies in our use of time a nd resources, and most nota bly a vast nancia l drain
on society.
1
Fighting corruption is one of the prima ry chal lenges of modern times. In
particula r, public procurement and the construct ion industry are notoriously vulnerable
to corrupt ion.2 e public procurement sector has often been described as e xceptionally
prone to corruption due to the substantial a mounts of money changing hands and a n all
too common lack of proper oversight or concomitant exper tise. Professor Gerry Ferguson,
in his work examining global corruption, notes that one, if not the, most prevalent area
of public procurement corruption is the constr uction industry.3 A key political and legal
focus in contemporary C anadian society is the attempt to addre ss and curb corruption
in these specic contex ts.
e province of Quebec is a jurisdict ion that has publicly stru ggled with a public
procurement regime and constr uction industry riddled with corr uption. Quebec is often
known for its history of corr uption crises, emanat ing from deep social a nd economic
changes stemm ing from the Quiet Revolution.4 e scandals have spanned a breadth of
areas including political nanci ng regimes, the appointment of judges, a nd the federal
“Sponsorship Scandal.”5 However, in recent years, corruption in public procurement and
organized cri me in the construction industr y have come particularly to the fore. In Oc tober
2011, a midst the fu ror of political scandal and increasingly ruptured public condence
in the government, then-Premier of Quebec Jean Ch arest announced a public inquiry to
investigate the awa rding and management of public contracts in t he construction industry:
the Charbonneau Commission (alternatively, the “Commission”). e Charbonneau
Commission, and the report it published fou r years later, will be the primary focu s of
thi s paper.6
1 Susanne Kuhn & Laura B Sherman, Curbing Corruption in Public Procurement: A Practical Guide
(2014) at 9-10, online: Transparency International
pdf/2014_AntiCorruption_PublicProcurement_Guide_EN.pdf > archived at
G2G E- H37 E>.
2 See AO Arewa & P Farrell, “The Culture of Constructi on Organisations: the Epitome of
Institutionalised Corruption”, Construction Economics and Building, 2015, 15(3), 59-71, online:
archived at 4JDK-
2VWS>. This study examined the cultu re of corruption in the United Kingdo m construction sector
and suggests that the nature of the construction industry itself promotes fraud and corruption.
3 Gerry Ferguson, Global Corruption: Law, Theory and Practice, 2nd ed, Coursebook (Creative
Commons License, 2017), ch 11 at 3, online: /06/
Global-Corruption-Law-Theory-and-Practice-2017.pdf> archived at
YW UM>.
4 For an in-depth commentary on the his tory and causes of Quebec cor ruption, see Martin
Patriquin, “Quebec: The most corrupt province”, Maclean’s (24 September 2010), online:
archived at
cc/5UFK-HEAL>.
5 These issues will be explored in fur ther detail in Part II of this paper.
6 Quebec, Rapport nal de la Commission d ’enquete sur l’octroi et la gestion des contrats public s dans
l’industrie de la construction (November 2015) (France Charbonneau) online:
gouv.qc.ca/leadmin/Fichiers_client/chiers/Rapport_nal/Rapport_nal_CEIC_Integral_c.
pdf> archived at [Charbonneau Re port]. Note that the
Charbonneau Commission’s full rep ort is currently available only in Fren ch.
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e Charbonneau Commi ssion and consequent report are impor tant moments in the
Canadian le gal landscape and in t he global ght against corr uption. Following the release
of the report in November 2015, there is merit in now reecting on what led to the report,
what it accomplished, and whether its numerous recommendations might be eective
in curbing corruption in public procu rement. In seeking to an swer these questions, t his
paper will rst sk etch out a broad overview of public procurement generally, the nature of
public commissions, and their c ontext in the province of Quebec. It will then dis cuss the
Charbonneau report a nd describe and critically assess its re commendations, particularly
as they relate to public procurement. Fina lly, this paper will canvas the implementation
of and reaction to the Charb onneau recommendations, exa mining sever al legislative
responses and elucidatin g their strengths and wea knesses through a comparat ive analysis
with certai n international standards, as well a s aspects of the Ca nadian federal public
procurement regime. Ultimately, this paper seeks to demonstrate th at the Charbonneau
Commission has been a u nique opportunity for a detailed and sophi sticated examination
of corruption in an industr y sector that has long been accepted as one of the most prone
to corruption—and t hat the Charbonneau C ommission’s recommendations have the
potential for major structu ral reform of public procurement in Quebec.
I. AN OVERVIEW OF PUBLIC PROCUREMENT
Before embarking on an e xamination of the Charbonneau Commis sion and report, we
must arm ourselves with an understand ing of public procurement, both in terms of its
general nature and its pa rticular suscept ibilities to corruption.
7
e Quebec Treasury Board
Secretariat, a govern ment department tasked in part with overs eeing the management of
contracts and resourc es in Quebec’s public administration, denes public procurement as
the act of public and municipal bod ies and government corporations procuring good s and
services in order to f ull their respective ma ndates.8 Essentially, public procurement occu rs
anytime a governmenta l or public body acquires goods or service s. Public procurement is a
broad term encompassing al l the stages of the often-complicate d procurement process, from
the initial need s assessment to the implementation of the nal contra ct. e governmental
acquisition of goods and ser vices ranges from somethin g as simple as obtaining material s
for schools to massive constr uction projects.9 It has been described a s a complicated and
opaque process which consume s vast amounts of global gross domestic product , meaning
rampant corruption in public procurement wa stes these public fu nds to a tremendous
degree.
10
e costs of corruption in public procurement ex tend beyond the nancial:
corruption distorts compet ition, drives down the quality of public works and t he likelihood
that a given project will ac tually meet the public’s needs, and ultimately undermi nes the
public’s trust in g overnment.11
Corruption arises i n the public procurement context in a variety of ways. To begin, we must
determine exact ly what is meant by corruption. In its guide to curbing public procu rement
corruption, Transparency Internationa l denes corruption a s “the abuse of entrusted
7 In the interests of brevity, this will be a cursor y overview of public procurem ent and related
corruption problems. For a much more in-depth exploration of these issues, see Ferguson,
supranote 3.
8 Quebec, Secretariat du Conseil du treso r, “Government Procurement: Role of the Sec retariat
du conseil de tresor” (2009), online: .gouv.qc.ca/en/public- procurement/
government-procurement/> archived at .
9 Kuhn & Sherman, supra note 1 at 6.
10 Ibid at 4.
11 Ibid.
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power for private gain.”12 is broad denition allows f or many iterations of corruption,
which can occu r at any stage of the procurement process, and can be i nitiated on either
side of the procurement relationship (that is, the private sec tor on the supply side, or the
government on the demand side).
13
Corruption spans from sma ll-scale, everyday abuse by
low-level public ocials to large-sc ale corrupt acts committed by public ocia ls in massive
projects. It includes such techniques as br ibes—through the form of donations to politica l
parties, for ex ample—being oere d to obtain a contract, rat her than the award being
based on merit or eciency.14 Transparency International also references the preva lence
of collusion in public procurement, which it denes a s “secret agreements between par ties
[…] to conspire to commit actions aimed to deceive or commit fraud with t he objective
of illicit nancial g ain.”15 Collusion in the context of procurement might a rise where
government ocials and bidders collude to pre-a rrange bids and deceive the competition,
or where bidders collude amongst themselve s to manipulate the contract award deci sion.
16
With a basic understandi ng of the public procurement process and how corruption might
operate within it, we can now a sk: what makes public procurement and the constr uction
industry par ticularly susceptible to corruption, to the e xtent that Transparency International
has ranked c onstruction and public works as the industr y sector most prone to corruption?17
To begin with, public procurement procedures are often complex and play out with
limited transpa rency, rendering corruption extremely h ard to detect. Further, those who
do uncover corruption—be it intentional ly or by chance—ra rely report it, for a variety
of reasons, including a lac k of engagement with the money at stake, a sense of futi lity in
the reporting proces s, and a fear of retaliation.18 One study sugge sts that the very culture
of construction organizations may promote institutionalized corr upt practices.19 is
vulnerabilit y to corruption stems from the cha racter of construction projects, which are
often massive in size a nd disjointed in nature. A s Professor Denis Saint-Marti n notes
in his work examining the Charbonne au Commission and corruption in Quebec, the
scale and complexit y of such projects, particu larly since they a re often one-of-a-kind
enterprises, render it dicult to ee ctively monitor payment and ensure proper standards
and guidelines a re followed.
20
Finally, the nature of these project s is such that private actors
are frequently and repeated ly asking for public approval, which increas es the opportunity
for bribes and inappropriate inuence in public dec ision-making processes.21 Ulti mately,
while numerous factors operate here, the overarching principle to be drawn from th is
12 Transparency Internat ional, The Anti-Corruption Pl ain Language Guide (2009) at 14, online:
_plain_language_guide>
archived at https://perma.cc/F6YR-LR8E.
13 Kuhn & Sherman, sup ra note 1 at 6.
14 Ibid.
15 Transparency International, supra note 12 at 9.
16 Kuhn & Sherman, supra note 1 a t 7.
17 Deborah Har doon & Finn Heinrich, Bribe Players Ind ex 2011 (2011) at 3, online: Transparency
International archived at https://
perma.cc/UR7C-P2BP>.
18 Kuhn & Sherman, supra no te 1 at 7.
19 Arewa & Farrell, supra note 2. This study w as conducted in the United Kingdo m construction
industry in parti cular, but I suggest its lessons may reveal institu tionalized traits around the
nature of the constructio n industry in general.
20 Denis Saint-Martin, “Systemic Corr uption in an Advanced Welfare State: Lessons f rom the
Quebec Charbonneau In quiry” (2015) 53:1 Osgoode Hall LJ 66 at 72
osgoode.yorku.ca/ohlj/vol53/iss1/4/> archived at >.
21 Ferguson, supra note 3, ch 11 at 8-9.
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analysis is t hat public procurement inherently tends to involve the ma ssive exchange of
money and resources, wit h continued regulatory approvals from public actors; t his in itself
leads to huge incentives for abusive prac tices and corruption.22
II. PUBLIC INQUIRIES AND THE QUEBEC CONTEXT
A. Public Inquiries Generally
To properly situate an examination of the Charbonneau Commission, we must rst
consider the nature and pur pose of commissions of inquiry generally, with due rega rd to
their strength s and weaknesses. In his work critiqui ng commissions of inquiry, Professor
Ed Ratushny de scribes them as a unique form of administ rative tribunal whose function
is to investigate and repor t on a certain issue. Af ter this task is completed, the comm ission
ceases to exist.23 Public inquir y commissions are create d under and governed by both
provincial and federa l legislation. Quebec’s Act Respecting Public Inquiry Commissions sets
out the power to establish a public inquir y and its fundamental purposes:
1. Whenever the Government deems it expedient to cau se inquiry to be made
into and concerning any mat ter connected with the good government of
Quebec, the conduct of any par t of the public business, the adminis tration of
justice or any matter of import ance relating to public health, or to the welfa re
of the population, it may, by a commission issued to that eec t, appoint
one or more commissioners by whom such inquiry sha ll be conducted.24
e language of t his provision, which mirrors a similar provision in the fe deral Inquiries
Act,25 is noticeably broad. e inclusive wording a llows the government to call an inqui ry for
any matter connected w ith good government and public interest generally. Commissioners
are given expansive powers to incur expenses, to su mmon witnesses, a nd to compel the
production of documents. Commissioners have c onsiderable autonomy once appointed,
as long as the investig ation is restricted to the authorized mandate. 26
Justice Gomery, who chaired a public inquir y commission following the federal
“Sponsorship Scanda l” (which will be briey considered later in this paper), has since
opined on the benets of public inquiries. He sugges ts the core function of an inquiry i s to
investigate, to educate, a nd to inform—all of which, in hi s opinion, operate to the benet
of Canadian so ciety.27 Common complaints levied again st commissions include criticisms
22 Note that much of what Transparency International s ays about corruption (at Kuhn & Sherman,
supra note 1) dovetails with the costs and co nsequences of corruption as identi ed by the
Charbonneau repor t. The causes of corruption in the rep ort are broken down betwee n those
related to the constructi on industry, the public procurement p rocess generally, those linked
to government actors and pu blic institutions, the inltration o f organized crime into the
construction indust ry, and a lack of adequate oversight or control (Charb onneau Report, supra
note 6, Volume 3, ch 2 at 20-33). The consequences of cor ruption include economic costs (b oth
direct and indirec t), an increase in organized crime, the diver sion of public interest objective s,
a threat to democracy and th e rule of law, and an erosion of condence in public ins titutions
(Charbonneau Report, supra note 6, Volume 3, ch 3 at 33-49). The Charbonneau Co mmission
specically set out to ad dress these harms in its report a nd recommendations.
23 Ed Ratushney, “The Commission of Inquiry: A R esidual Institution of Government ” (2010) 4 J
Parliamentary & Pol L 275 at 275.
24 Act Respecting Public Inquiry Commissions, CQLR 2006, c C-37, s 1.
25 Inquiries Act, RSC 1985, c I-11, s 2.
26 Justice John H Gomery, “The Pros a nd Cons of Commissions of Inquiry” (20 06) 51:4 McGill LJ 783
at 786.
27 Ibid at 792.
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that they ta ke too long and cost too much.
28
Justice Gomery ack nowledges these concerns
but counters that the Supreme Court of Ca nada has genera lly rejected these vie wpoints
and upheld the legitimacy a nd necessity of public inquiries.29 He concludes by extolling
the benets of inquiries: they are independent and impart ial, their open nature a llows
the public to be apprised of the circumstances that led to t he critical issue in que stion,
and they typically oer recommendat ions to the government (which not only assist in
remedying whatever situat ion necessitated the inquir y, but further tend to restore public
condence in the process overa ll).30
Public inquiries have some strateg ic political value, but I suggest thi s does not necessarily
undermine their abil ity to investigate dicult iss ues, oer recommendations, or reinforce
faith in public institut ions. Ratushney notes the political aspect of public inquiries,
describing them as bot h a “check on politics” and a “political tool.”31 Inquiries are created
in exceptional circu mstances: where t here has typica lly been a total fa ilure to properly
address the issue at ha nd. In this sense they are i nherently political in nature. i s political
purpose might be to enga ge stakeholders and t he public, or to obtain policy advic e on
thorny issues.32 It has also been suggested, in a more c ynical lig ht, that they serve a n
important tactical purpose:
e primary politic al advantage in appointing a commi ssion of inquiry is to
take the heat o the govern ment in relation to a problem with a high public
prole. e government can say it has ‘ done something’ without havi ng to
admit wrongdoing, at leas t temporarily.33
On the one hand, then, the Charbonneau Commission could be seen primarily as a
political instr ument and an expensive mechanism to deect negative attention from
the government, the true va lue of which is limited. On the other ha nd, however, it is
precisely the will ingness of the government to call an inquir y and investigate allegations
of misconduct which lends it inherent worth in our democratic society. Indeed, Justice
Gomery lauds this a spect of public inquiries for their ability to res tore public condence in
the government itself: “[i]n Canada we tend to take thi s for granted, but very few nations
subject their governments to thi s kind of independent and public scrutiny.34
B. Corruption in the Quebec Context
e context of scandal a nd corruption in which the Charbonneau C ommission was struck
is not a new phenomenon. Quebec has been cal led Canada’s “most corrupt province,” and
journalists a nd political commentators have long speculated on the source and accuracy
28 Ibid at 794.
29 Ibid at 789.
30 Ibid at 792.
31 Ratushney, supra note 23 at 280.
32 Ibid at 276.
33 Ibid at 280.
34 Gomery, supra note 26 at 787. While the government’s willingne ss to appoint a public inquiry
to investigate allegations of pub lic wrongdoing is laudable, it shoul d be noted that when
Charest initially announce d the creation of the Commission, he did so by ca binet decree
rather than under Quebe c’s Act Respecting Public Inquiry Commissions. This meant the power
of the Commission was substantia lly fettered. It was only af ter a period of sustained public
criticism that the Charest govern ment granted the Commission full powers u nder the Act
and thus ensured the full indep endence of the Commission. This fac t must be borne in mind
when commending the Queb ec government’s willingness to investig ate allegations of public
procurement corruption. See Linda Gyulai, “Charbonneau Commission timeline”, Montreal
Gazette (24 November 2015), online:
Charbonneau-commission> archived at .
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of such a statement.35 Without supporting the as sertion that Quebec is t he most corrupt
province as compared to the re st of Canada, I would at minimum arg ue that Quebec has
struggled for dec ades with high levels of ongoing corruption in m any of its institutions.36
Quebec’s climate of corruption can perhaps be t raced back to the rapid modern ization
in the 1960s known as the Quiet Revolution. is period led to massive project s with
poor oversight that were fertile ground for corrupt practices; project s were also plagued
by ongoing strife and union violence.37 Today, the constant scandals are ea sy to name:
allegations of inappropriate in uences in the appointment of judges and in politic al
nancing, corr uption in the construction industry, and the federa l sponsorship scandal.
38
A stark representation of the purpor ted extent of corruption is captured in the following
gure: accordi ng to Transport Cana da gures, “it costs Quebec t axpayers roughly 30 per
cent more to build a stretch of road tha n anywhere else in the country.”39
is history of public sca ndals indic ating high levels of c orruption in Quebec is an
important context to properly situate the social and politica l milieu from which t he
Charbonneau Commis sion emerged. For example, the federal “Spons orship Scandal,”
which came to lig ht through the late 1990s and early 2000 s, revealed rampant corruption
and cast a dim v iew not only of the federal Libera l Party but of politics in Q uebec.40 A
sponsorship fund had been e stablished as an advertisi ng campaign to promote federalism
in Quebec, following t he failed referendum on sovereignty in 1995. However, it was alleged
that the Liberal govern ment abused the system and agra ntly broke rules in awarding public
contracts by misappropriatin g public funds into the pockets of supporters of the Liberal
Party in Quebec.41 is scandal resulted in the Auditor Genera l of Canada launch ing a
full investi gation, a nding that CAD100 million had be en paid to advertising companies
operating in Quebec for work that wa s never even done,42 a public inquiry headed by
Jus tic e G omer y,43 and a crisis of condenc e in the Liberal government which set the sta ge
for the Conservative Par ty to take federal power.44 More recently, allegations emerged in
35 Patriquin, supra note 4.
36 For a deeper analysis of the systemic cor ruption in Quebec and a considerat ion of Quebec’s
historical trajecto ry since the Quiet Revolution, se e Saint-Martin, supra note 20 at 81-91.
Saint-Martin accepts the h igh levels of corruption in Quebec, a lthough he argues that the
very idea of “systemic cor ruption” is not a sound conceptual basis fo r creating change in
anti-corruption research.
37 Patriquin, supra note 4.
38 Ibid.
39 Ibid.
40 “Federal sponsorship scandal”, CBC News Online (26 October 20 06), online:
background/groupaction/> archived at [“Federal sponsorship
scandal”].
41 For an in-depth d escription of the Sponsorship Sc andal, see Jay Makarenko, “Gomer y
Commission of Inquiry & Spo nsorship Scandal” (1 January 200 6), Mapleleafweb, online:
sorship-scandal.html>
archived at .
42 For the full report, se e Oce of the Auditor General of Canada , 2003 November Report
of the Auditor General of Canada, online:
oag_200311_e_1126.ht ml> archived at .
43 For the full report, see Can ada, Commission of Inquiry into the Spo nsorship Program and
Advertising Activities, Who is Responsible? Phase 1 Repor t (1 November 2005) and Restoring
Accountability, Phase 2 Report (1 February 20 06), online:
bcp/commissions/sponsorship-ef/06-02-10/www.gomery.ca/en/phase1report/default.htm>
archived at .
44 “Federal sponsorship scandal”, supra note 40.
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2010 that third parties had i nappropriately inuenced the appointment of three judges to
the Court of Quebec, wh ich resulted in the establishment of a public inquir y to investigate
those issues.45
Finally, a consideration of corruption in Quebec must a lso examine the establish ment of
the Permanent Anticorruption Unit (Unité permanente anticorr uption) (“UPAC”). UPAC
was created by the provincia l government in February 2011 in order to combat corruption
in Quebec.46 UPAC emerged out of public calls for action and accountability followin g
the same revelations of corr uption in Quebec’s construction industr y which led to the
Charbon neau Commissi on.
47
UPAC consists of over 350 members with an annual budget
of CAD30 mill ion, and UPAC coordinates law enforcement forces and expertise on beh alf
of the government in the ght aga inst corruption.
48
UPAC operates on three distinct f ronts
related to corruption: prevention, verication, a nd investigation. e UPAC Commissioner,
who is considered a peace ocer t hroughout the province of Quebec, has broad powers to
investigate possible corruption, coordi nate responses, and formulate recommendations to
individuals, govern mental bodies, a nd public sector entities on the management of their
contracts with a vie w to preventing corruption.49 UPAC also has a strong educational
component, which includes such techniques a s oering various public information ses sions
on integrity in public contracts a nd challenges regarding corr uption generally.50 UPAC
has been active in h igh prole investigat ions and arrests in recent years, which sug gests
it is establishing itself as a centre of expertise and a crucia l and independent force in the
ght agains t corruption in Quebec.51
e characteriz ation of Quebec as Cana da’s “most corrupt” province is itself highly
controversial, and a comparati ve analysis to reject or substantiate th at assertion is beyond
45 Marc Bellemare, Quebec’s Ministe r of Justice from 2003 to 2004, made pub lic allegations in
2010 that third parties who were involved in fund raising for the Quebec Liberal Pa rty had
inappropriately inuen ced the appointment of three judges to th e Court of Quebec. These
allegations resulted in Chares t calling an Inquiry Commission on th e Process for Appointing
Judges. While the Commissio n found insucient evidence to estab lish an inappropriate
inuence in the appointment o f these three judges, it neverthe less noted that certain stages o f
the appointment process are v ulnerable to all manner of intervent ion and inuence, and made
several recommendations to r espond to public expectati ons and restore public condence
in the administration of jus tice in Quebec. See the Inquir y Commission on the Process for
Appointing Judges of the Cou rt of Quebec and Municipal Cour ts and Members of the Tribunal
administratif du Quebec (Les Publications du Quebec, 2011), online: j.gouv.qc.ca/>
archived at .
46 For a m ore detailed examination of UPAC, see Ma xime Reeves-Latour & Carlo Mor selli, “Fighting
Corruption in a Time of Crisis: Le ssons from a Radical Regulator y Shift Experience”(2017) Crime L
Soc Change at 5.
47 For details on UPAC’s purpose, powers, and creati on, see Quebec’s Anti-Corruption Act, SQ 2011, c
17 [Anti- Corruption Act].
48 Qu ebec, Commissaire a la lutte contre la co rruption, “Lutter contre la corrup tion pour un
systeme public integre”, online: archived at
[author’s translatio n].
49 Quebec, Commissaire a la lutte cont re la corruption, “Le Commissaire”, online:
gouv.qc.ca/upac/le -commissaire.html> archived at [author’s
translation].
50 Quebec, Commissaire a la lutte contre la co rruption, “Formation en ligne”, online:
upac.gouv.qc.ca/prevenir/formation-en-ligne.html> archived at /perma.cc/HFZ5-Q6VK>
[author’s translation].
51 For example, UPAC arrested several high -ranking Quebec Liber als on such charges as fraud on
government, corruption, a nd abuse of trust for allegedly cr iminal behavior related to politica l
nancing and abuse of public co ntracts, amid calls for the Charb onneau Recommendations to
be implemented: see Jaso n Magder, “High-ranking Liber als, including Nathalie Normande au,
arrested by UPAC on fraud charges”, Montreal Gazette (17 March 2016), online: montrealgazette.
com/news/local-news/high-ranking-liberals-including -nathalie-normandeau-arrested-by-upac-
on-fraud-charges> archived at .
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the scope of this paper.52 However, I suggest that t he above consideration of Quebec’s
history demonstrates h igh levels of corruption, and it sets the stage for a n understanding
of the signicanc e of the Charbonneau Commission and its recommendat ions. A plausible
explanation for the hig h levels of corruption in Quebec is simply t hat Quebec is more
vigilant in its polici ng of corruption.53 is suggest ion draws on the idea that wherever
there is government, there is corruption, and perhaps corruption is the most visible in
Quebec because th is is where it has been the most visibly exposed and tack led, with the
establishment of forces such a s UPAC.54 Indeed, most anti-corruption researchers today
start from the premise that all huma n societies are corr upt, and that some nations are
simply better than other s at detecting and eradicati ng corruption.
55
I accept this sug gestion,
and argue that we wou ld be well served to scrutinize t he experience in Quebec for lessons
in the ght against corruption, as I strive to do in this paper. Quebec faces high levels
of corruption, but the lessons learned from t he Charbonneau Commi ssion and report
have the potential to lead to major structural reform, wh ich might render Quebec more
adept and sophisticated in its a bility to deter corruption a nd reduce its associated cos ts.
Saint-Martin argues that corrupt ion is deeply adaptable. To this end, he suggests t he
Charbonneau Commission as a “moment” in the ght against corr uption might have
benecial short-term eects but fewer long-term impacts, as corrupt ocia ls learn to
manipulate new ins titutional changes resu lting from the Charbonneau recommend ations.56
He writes that “[t]he shift in societies from a systemically corr upt social order to a less
corrupt one is never achieved once and for a ll as ‘big ban g’ models of change lead u s to
believe.”
57
I agree. And I do not sugge st that the Charbonneau Comm ission will operate as
the “big bang” moment which wi ll conclusively set Quebec on a path away from systemic
corruption. However, I would argue that t he depth of the Charbonneau inquiry and the
light it sheds on institutiona lized corruption nevertheless oers an i mportant vehicle for
signicant str uctural reform in Quebec and sophisticated mechanisms in the ongoing
ght agains t corruption in that province.
III. THE CHARBONNEAU COMMISSION, REPORT,
ANDRECOMMENDATIONS
A. The Charbonneau Commission
Having assess ed public procurement and corruption generally, the nature of commissions
of inquiry, and the Quebec context, we tu rn now to the central focu s of this paper: the
Charbonneau Commi ssion. e Commission was est ablished in 2011 by then-Premier
Jean Charest a mid sustained pre ssure following a llegations of widespread c orruption
52 It has been argued, for exampl e, that Quebec is unique in being trul y more corrupt than any
other province in Canada: see Pat riquin, supra note 4. Several explanations for this phenomenon
include the high levels of provin cial spending on projects in Qu ebec, which increase the scope
for corruption, as well as Que bec’s quest for independence w here the public focuses on the
haunting question of separ ation rather than on demanding an account able and transparent
government.
53 Globe Editorial, “Is Quebe c corrupt, or just more vigilant?”, Globe and Mail (23 M arch 2016),
online: editorials/is-quebec-corrupt-or-just-more-
vigilant/article29365096/> archived at .
54 Ibid. See also Saint-Martin, su pra note 20 at 72, where the author acce pts that Quebec faces
high levels of endemic corrup tion but asserts that Quebe c is not alone in this regard, and
lists numerous other devel oped countries that similarly face s ystemic corruption in particul ar
industries.
55 Saint-Martin, supra note 20 at 77.
56 Ibid at 105.
57 Ibid.
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in Quebec’s public procurement processes and constr uction industry.58 Charest named
Quebec Superior Court Justice Fra nce Charbonneau to head the inquiry. Formally tit led
the Commission of Inquir y on the Awarding and Man agement of Public Contracts in
the Construction Indus try, its primary focu s—as t he name suggest s—was to exa mine
and improve practices related to public procu rement in the construct ion industry. I
argue that the Ch arbonneau Commission is a robust show of democracy, rather than
operating primarily as a political strategy to deect sustained critici sm of the Quebec
government. e Commission’s lengthy investigation a nd recommendations respond to
central concerns in t he ght again st public procurement corruption. Integrity in public
procurement requires not only good governa nce, but also a susta ined political eor t to
review and update sound procu rement rules.59 e Commission and repor t are a part of
that necessa ry political eort.
According to the Comm ission’s nal report, concerns around corr upt schemes relating
to public contracts in the const ruction industry began circul ating in 2007.60 ere were
questions regardin g conicts of interest in the awardi ng of public contracts, inappropriate
ties between un ion executives and construction contractors , and allegations of bid-rigging
which sparked media at tention and public controversy.61 e Quebec legislature re acted
by passing a bill to tig hten up regulations around public contracts, add cer tain restrictions
on building licences , and amend penal provisions relating to the const ruction industry.62
Further legislative changes were made regarding ethic s in municipal aairs and election
funding.63 However, new schemes continued to be uneart hed, and after the release of yet
another damning report in the fal l of 2011, t he Government of Quebec announced the
creation of the Charbonneau C ommission.64
e Commission’s mandate was trifold: r st, to examine ac tivities of collusion and
corruption in public contracts within the construc tion industry; se cond, to investigate
the possible inltration of orga nized crime in the construction industr y; and third,
to suggest recommendat ions to better identify, reduce, and prevent corruption and
organized crime in these industrie s.65 e scope of the investig ation covered the period
from 1996 to 2011.66 e Commission directed a monumental invest igation into these
issues, which is demonst rated by the degree of evidence that came before it. Notably, the
Commission conducted 263 days of hearings, heard from approxim ately 300 witnesses,
led 3,600 documents a nd produced 70,000 pages of tra nscripts.
67
e Commission
dened public contracts a s those with any agency or person in the public sector, mean ing
that hundreds of bodie s were covered in its ambit, including government ministries and
agencies, universities, mun icipalities, school boards, and cer tain companies with a degre e of
government owner ship.
68
e Commission heard explosive te stimony from such witnesses
as engineers, contrac tors, former mayors, members of the National Assembly of Quebec,
58 Sidhartha Banerjee & Peter Rakobowchu k, “Quebec corruption inqui ry ends after 30 months
of public hearings”, Toronto Star (14 November 2014), online:
canada/2014/11/14/quebec_corruption_inquiry_ends_after_30_months_of_public_hearings.
html> archived at .
59 Ferguson, supra note 3, ch 11 at 24.
60 Charbonneau Report, supra note 6, Part 1, ch 1 at 4.
61 Ibid.
62 An Act to provide measures to ght crime in the constr uction industry, SQ 2009, c 57.
63 Charbonneau Report, supra note 6, Part 1, ch 1 at 6.
64 Ibid at 8.
65 Ibid, Part 1, ch 2 at 12.
66 Ibid.
67 Ibid, “Mot de la Presidente” (no page num ber: PDF at 16).
68 Ibid, Part 1, ch 2 at 12.
APPEAL VOLUME 23
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and union organiz ers which demonstrated shocking de grees of alleged corruption.
69
Overall
themes in the evidence demonstrated the depth of corruption in engineering rms a nd
construction contractors i n Quebec, issues around conicts of interest, collusion and
kickbacks, t he inltration of the Maa in the const ruction industry, and the hidden face
of politica l nancing.70 e “relentless testimony of kick backs and greased pal ms,” which
resulted in the resign ation of three Quebec mayors, constituted what lega l commentators
have called a clea r signal that t he entire Quebec construction industry is in need of a
regulatory overhau l.
71
is overhaul is precisely wh at the Charbonneau recommendations
set out to accomplish.
B. The Charbonneau Report
In November 2015, four years following its creat ion, the Commission tabled its nal
report. e report, neari ng 2,000 pag es in length, oers a u nique and comprehensive
analysis of public procurement, t he construction indust ry, and political na ncing. e
report focuses on the Queb ec context buttressed by a lengthy ana lysis of foreign experience.
e report has much to oer in the g ht against corruption generally, but unfortunate ly
is still only avai lable in French.72 An ocial English tra nslation would go far to bring the
lessons of the Commission’s work to the rest of the world. e report itself is d ivided into
ve parts. Part 1 se ts out the context of the creation of the Commission, including its
mandate and evolution. Part 2 provides e xtensive summary inform ation regarding public
contracts, the const ruction industry, political nancing , and organized crime, whi le also
canvassing foreig n experiences with reg ard to these issues. Part 3 summarizes the fact s
uncovered and evidence a s a whole, broken down into several chapters si mply due to the
sheer amount of testimony collected . Part 4 analyzes the natu re of the schemes and their
causes as uncovered by t he evidence. Part 5 contains 60 recommend ations proposed by the
Commission to the government. In lig ht of the shocking depth of c orruption unearthed
by the Commission, the report opens w ith a cri de coeur 73 appealing citizens to become
more actively involved in the ght ag ainst corruption, recommending that journa lists
keep watch, and encourag ing regulator y bodies and UPAC to continue their importa nt
work. Collaboration from al l levels of society is essential, in the Comm ission’s opinion,
to address corruption in Quebe c.74
C. The Charbonneau Recommendations
In Part 5 of its report, the Comm ission turns to the third and na l aspect of its mandate:
examini ng potential solutions and making re commendations to prevent public procurement
corruption in the constr uction industry. e Commission strove to incorporate a broad and
comprehensive range of perspecti ves in its recommendations. To this end, the Commission
heard suggest ions from a variety of exp erts, interest groups, professiona l associations,
international organ izations, and public institutions. e Commi ssion also identied and
incorporated academic l iterature on the relevant subjects raise d by its mandate. Finally, the
Commission took heed of public debates, comments from citi zens, and general discussions
from observers.75 e extensive considerat ion of a diversity of expert opinions and foreign
69 “10 witnesses whose testimony rocked the Commissio n”, CBC News (14 November 2014),
online:
Charbonneau-commission-1.2834413> archived at https://perma.cc/7LKB-FFRK>.
70 Charbonneau Report, supra note 6, “Mot de la Presidente” (no page num ber: PDF at 17-18).
71 Douglas Oles, “Anti-Corrupti on Legislation in the United States (An Introdu ction)” [2014] J Can C
Construction Law 67 at 67.
72 This author speaks French and worked f rom the French report as well as several Eng lish
summaries.
73 This is a French phrase meaning “a passionate outcr y or appeal.”
74 Charbonneau Report, supra note 6, “Mot de la Presi dente” (no page number: PDF at 17).
75 Ibid, Part 5 at 1.
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experience is one of the great stre ngths underpinning t he Charbonneau recommendations.
Legislation, for exa mple, is sometimes criticized for being spee dily enacted without proper
debate or sucient academic back ground.76 In this sense, commissions of inquir y have a
certain adva ntage over legislative change as a be tter avenue through which to eect long-
term, well-informed solutions to systemic problems.
i. Action Strategies
e Commission rst gave a n account of various principles and strategies that g uided
its recommendations. It identied two overarching para meters: the recommendations
must underscore basic principles of democrac y and the rule of law, and they must be
curative in nature .77 e Commission then set out eight act ion strategies to underpin the
recommendations.
78
e strategies focused on eectively regu lating intervention wit h
measures of increa sing intensity; by starting with awa reness and education and working
gradually to coerci ve measures, the recommendations sought to ma ximize resources and
avoid disengaging ac tors willing to comply with standard s.79 e strategies also included
targeting st ructural reform rather than punishing individual action, and improving
the quality of state i ntervention by acting proactively rather than react ively.80 e nal
strategies tar geted public procurement specically: to depolitici ze the process of granting
public contracts, to use a nuanc ed and informed transparency, to engage c itizens by better
protecting whistleblowers, a nd to strengthen the integ rity of actors in the public sector
overall.
81
In these strategie s, the Commission reinforced the notion th at citizens are agents
of change in an at tempt to reinvigorate public trust in a fracture d system. ese strategies
also combat apathetic at titudes about inevitable corr uption in Quebec by bolstering the
idea that individua l action can lead to positive, structura l reform.
ii. Recommendations Regarding Public Procurement
e Commission establis hed ve main area s of intervention: (i) to review the public
procurement framework; (ii) to improve detection and sa nctions; (iii) to target inappropriate
political na ncing; (iv) to promote citizen participation; a nd (v) to renew trust in elected
ocials and civi l servants. A consider ation of all 60 recommendat ions is beyond the
scope of this paper, which wil l focus primari ly on the rst block of recommendations
regarding public procu rement. e rst central recommendation made by t he Commission
is the establishment of a provincial public procurement authority (“PPA”) for Quebec.82
e report suggests t hat due to the unique, complex, and sometime s urgent nature of
public construction projects, public contra cting authorities (“PCA s”) are rarely able to
ensure the integrity of such c ontracts on their own.83 O versight from such a public body
would purportedly resp ond to central vulnerabilities in t he existing procurement system,
including excessive d iscretion aorded to PCAs in applying ru les for awarding contracts
and a lack of sucient internal e xpertise when evaluating contract s.
76 See Graham Steele, Bill 1: A Case Study in Anti-Corr uption Legislation and the Barriers to Evidence -
Based Law-Making (LLM Thesis, Dalhousie University Schulich Scho ol of Law, 2015) at 86-
88, online: Faculty of Graduate Studies Online Theses
handle/10222/56272/Steele-Graham-LLM-LAWS- March-2015.pdf?sequence=1&isAllowed=y>
archived at . These considerations will be addres sed in greater
detail in Part IV of this pap er.
77 Charbonneau Report, supra note 6, Part 5 at 1.
78 Ibid, Part 5, ch1 at 83.
79 Ibid at 84.
80 Ibid at 85.
81 Ibid at 86 -8 7.
82 Ibid, Part 5, ch 2 at 91-92.
83 Ibid.
APPEAL VOLUME 23
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e Commission suggested several ancil lary recommend ations to provide the PPA
with information and enforcement measures necess ary to ensure t he integrity of public
procurement. e PPA would require access to informat ion from all part ies involved
in public procurement, and it should share th at information with control bodie s such
as UPAC and the Competition Bureau of Cana da.84 It was also recommended that the
PPA produce an annual report and oer training courses for PCAs relat ing to public
procurement. In this sense, t he report envisions a strong educationa l function for the
PPA, on top of its ongoing monitoring powers. In terms of regulating t he work of PCAs,
the report suggeste d a number of steps which would integrate t he PPA within all stages
of public procurement (including the tendering system and appointment of selection
committees), require the presence of in spectors to ensure integrity, ensure clear compla int
responses free of politica l inuence, and generally al low the PPA to act as a buer bet ween
public and private actors.85 Final ly, the report recommended that the PPA take over the
power to licence businesses w ishing to enter into public contracts, a responsibility which
currently rests wit h the Autorité des marchés nanciers (“AMF”).86 While there were no
current issues found with t he AMF regulating business licences, trans ferring this power
to the PPA would maximize its u se of expertise and resources.87
e report then recommended alteri ng the tendering rules in the const ruction industry to
depart from the “lowes t compliant bidder” approach. While professional servic es contracts
are decided based t ypically on a combination of both quality and price, c onstruction
contracts consider price alone, meaning the bid with the lowest price is selected.88 is
approach has numerous setback s, including a dispropor tionate focus on price which
incentivizes compa nies to minimize costs at t he expense of quality and innovat ion.89 is
approach also increas es the possibility of collusion; results are pred ictable, since the lowest
price tender will win, wh ich allows bidders to collude to divide contracts.90 erefore, the
Commission recommended th at the tendering rules be changed to provide t he PCA with
the best intersection of price a nd quality, based on the nature of the work. However, the
report did not set out proposed rules. R ather, it suggested that the PCAs have t he authority,
under the supervision of the PPA, to craf t rules which reect an appropriate weighing of
price and quality cr iteria depending on the constr uction contract in question.91
is recommendation responds to one of the centr al forms of public procurement
corruption identied by Transparency Internat ional, as set out in Part I of this paper:
collusion. However, departure from the lowest c ompliant bidder approach imports more
discretion into the process , particularly since th is recommendation does not itself suggest
rules to achieve t he best intersection of price and quality. Increasing space for d iscretion
also increase s the possibility of corruption.92 us, while depa rture from the lowest
common bidder approach is justied to import qua lity into the tendering proce ss, its
implementation could have counterintuitive resu lts by increasing the scope for corruption.
I suggest that a ny response to this recom mendation would be well-served not to leave
discretion of the PCA s entirely unfettere d, and that the super vision of the PPA should
establish cert ain overarching guidelines to reduce t he risk of corruption stemming from
84 Ibid. As with many of its recommendation s, the Commission envisioned that the PPA would work
in conjunction with UPAC in its investigation and analytical activities.
85 Ibid at 94-96.
86 Ibid at 9 7.
87 Ibid.
88 Ibid.
89 Ibid at 99.
90 Ibid at 98.
91 Ibid at 99.
92 Ferguson, supra note 3, ch 11 at 49-50.
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increased discretion. PCAs could m aintain some, but not total, dis cretion to determine
the appropriate intersection of price and qua lity when it comes to selecting a bidder.
e latter proposals in t he rst block of recommendations add ress discrete sub-is sues
relating to public procurement. First, the Commission identied politica l inuence in
the approval of road infra structure projects by the Minist ry of Transportation of Quebec,
and suggested mea sures to depoliticize t his process.93 e Commis sion then referenced
rampant collusion in the eld of a sphalting and the acquisition of materials a nd licensed
products. e recommendations sug gested measure s to increase healthy competition in
these regards , since it was deemed the current system lim its competition and drives prices
disproportionately high.
94
Next, the Commission recommended tightening rule s for
awarding contract s to para-municipal companies and non-prot organ izations. Currently,
these bodies are not entirely subject to legislation governing public procu rement, such
as the Act respecting contracting by public bodie s (“ACPB ).
95
During the Commission’s
work, UPAC raised concerns that corr upt individuals could use non-prot organizat ions
as a tool for fraud and ta x evasion, thereby wastin g public funds. e Commission thus
recommended that such bod ies be subject to the same legislative ru les as the public bodies
with which they a re associated.
Finally, the Commission recommended c hanging the deadline for the receipt of tenders.
Currently the deadline is set at a minimum of 15 days. However, many companies do
not have adequate time to prepare a bid and are el iminated from the compet ition.96 On
the other hand, 15 days can be too long of a deadl ine in situations of urgency. e report
thus suggested g reater exibility by allowing PC As to establish a reasonable deadli ne for
receipt of bids, depending on the na ncial importanc e and complexity of the project at
hand. While e xibility is arguably require d in this process, the same concer ns highlighted
above regarding d iscretion resulting in an increa sed potential for corruption apply in this
context. However, as I suggest above, a n established PPA could create guidel ines and
monitor deadlines to ensure that any increased ex ibility is properly used and does not
in itself increase t he scope for corruption in this particula r context.
iii. Recommendations Regarding Sanc tions, Political Financing, Citizen Participation,
and Condence in Public Ocials
After addre ssing public procurement, the Commission oered fur ther recommendations
in four blocks: improving prevention and st rengthening sa nctions, addressing political
party na ncing, promoting citiz en participation, and renew ing condence in public
ocials. is paper w ill now canvass the second block of recommendations a s it focuses
specically on preventi ng collusion, corruption, and the in ltration of organiz ed crime
in the construct ion industry.
e Commission recommended improved whi stleblower protection legislation of general
application.97 Currently, whistleblowers are protec ted by sector-specic legislation such
93 Charbonneau Report, supra note 6 at 99.
94 Ibid at 101.
95 Act respecting contracting by publi c bodies, CQLR c C-65.1 [ACPB]. See also Charbonneau
Report, supra note 6 at 105. The Commission note d that government agencies often sub sidize
construction projects which are carried out by para-municipal or non-prot organizations.
However, such organizations are not subj ect to the ACPB, which means they may enter contr acts
with companies who have been d eemed ineligible for public cont racts, using public subsidies
in the process. The Commissio n noted particularly that the recen t Recovery Act extends to para-
municipal and non-pro t organizations, and suggest s that other pieces of legislation shoul d be
similarly extende d (Recovery Act, infra note 155). The ACPB and the Recovery Act will be addressed
in greater detail in Part IV of t his paper.
96 Ibid at 1 07.
97 Ibid at 109.
APPEAL VOLUME 23
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as Quebec’s Anti-Corruption Act.98 However, this legislation is limited in that it targets
only the public procurement sector and is only ava ilable for a person who reports directly
to UPAC (rather than to a colleague or ma nager, for example). On a related note, the
Commission also rec ommended improved witness immun ity for those cooperati ng in
investigations.99 e recommendation of a general s ystem of protection for whistleblowers
and improved witness immunit y responds directly to one of the central chal lenges to
corruption identied by Transparency Internationa l in Part I above, being that those who
do uncover public procurement corruption rarely tend to report it.
e Commission then set out a series of interrelated recommendations to prevent the
inltration of organ ized crime into the construct ion industry. ese include expanding the
list of oences that c an result in the cancellation of a const ruction contractor’s licence by
the Régie du bâtiment du Québec (“RBQ”),100 tig htening the rules on the waiting period
imposed by the RBQ for licen se holders that have committed an oence,
101
and expa nding
the scope of crimina l record checks for shareholders in const ruction companies.102 Furt her
recommendations targeted issues such as reducin g payment delays to construct ion
contractors,103 cracking down on violence and intimidation in construction sites,104
targeting false billing,
105
reviewing t he appointment process for the UPAC Commissioner
to ensure proper independence from politica l inuence,106 and improving t he reliability
of the data gathered by the Queb ec register of enterprises on companies authorized to do
business in Quebec.107 e Com mission also suggested cha nges for improved monitoring
of Quebec’s professiona l system.108 ese numerous recommendations ree ct increasing
criminali zation tactics r ather than ensur ing compliance throu gh cooperation and self-
regulation, and they oper ate in conjunction with a view to drive down the possible
inltration of organ ized crime in the construc tion industry and to improve the monitoring
and reporting of possible corr uption. ey reect a more punitive approach to a nti-
corruption which is ana lyzed in more detail in Part IV(B)(i) below.
98 Anti-Corruption Act, supra no te 47.
99 Charbonneau Report, supra note 6, Part 5, ch 2 at 111-113. This recommendation is made on the
basis that evidence from rep entant witnesses is crucial in cases of cor ruption and collusion,
where it is typically d icult to acquire the necessary evi dence.
100 Ibid at 114. The RBQ is tasked with ensuring the qua lity of work and safety of buil dings and
facilities, and the profes sional qualications and integrit y of contractors. It enacts a nd enforces
construction, safe ty, and professional qualication st andards. Currently, if ocers of a business
with a construction contr actors’ license have been convicte d in the last ve years of a tax
oence, an indictable o ence connected with the constru ction industry, or gangsterism,
their license is cancelled by th e RBQ. The Commission recommended that t he RBQ licensing
requirements be tighten ed so that this list is expanded to includ e the oences of tracking,
production or impor tation of drugs, laundering th e proceeds of crime, and oences relate d
to collusion and corruption. T his aims to address particular vulne rabilities of companies in the
construction industry to the inltration of organized crime.
101 Ibid at 115.
102 Ibid at 117.
103 Ibid at 118 .
104 Ibid at 119-120.
105 Ibid at 131.
106 Ibid a t 127.
107 Ibid at 130.
108 Ibid at 136-141. The testimony during the Commission revealed concerns a round a lack of ethics
in Quebec’s professional s ystem and insucient monitoring of th e professional system due to a
lack of data and professional in spections. These recomme ndations targeted engineerin g rms
in particular; the Commis sion noted that many engineering rms ha d cultures which allowed
corrupt practices rega rding political nancing and collusio n, and suggested changes to ensure
that engineering rms be made subject to proper ove rsight, rather than the professionals
themselves. As it current ly stands, oversight bodies can on ly discipline professionals rather th an
the rms themselves, which th e Commission highlighted as a fundament al challenge in curbing
corrupt practices in professional systems.
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e report also addre ssed the protection of sensitive information and advocated for a form
of “nuanced transparenc y.109 e C ommission concluded, based on expert test imony, that
transpa rency alone can not necessarily g uarantee eectiveness and fai rness in the public
procurement process.
110
Interestingly, this sug gestion is somewhat at odds with the premis e
that transpa rency is the hallmark to a ny good public procurement system.111 Transparency
in public procurement has been descr ibed as reducing the risk of corruption by ensuring
the accountability of decision-makers and the enga gement of stakeholders.112 Somewhat
conversely, the Commission found that disseminating information may in fact facil itate
collusion and exert undue pressu re on key players in the public procurement process,
particula rly information relating to the composition of selection comm ittees and the identity
of parties accept ing tender documents.
113
e Commission thus recommended t hat laws be
standardi zed to ensure the condentiality of such i nformation in the hopes of decreasing
opportunities for collusion and c orruption. I suggest that the Commi ssion’s advoc acy for
the concept of nuanced tra nsparency demonstrates the depth of its exa mination into the
nature and sources of procu rement corruption. By refusing to rely on tra nsparency as a
panacea for al l corruption, the Commission presented a more sophisticated and nua nced
strategy in t he ght against corruption in Quebec.
e nal three block s of recommendations wil l now be briey addressed, but their f ull
consideration is beyond the scope of this paper. Part ree addresses political nancing.
e Commission disti nguished legiti mate inuence in a democratic so ciety from
inappropriate interference, and made rec ommendations regarding political na ncing as
a way to depoliticize public procurement process es.114 Part Four is intended to promote
citizen participat ion and to encourage Quebec citi zens to take on an ac tive monitoring
role in the ght on corruption.115 is would be pri marily achieved through a centra l
recommendation that Quebec adopt a law a llowing citizens to prosecute fraud sters on behalf
of the government, mirroring the e xisting American Fal se Claims Act.116 e nal block of
recommendations focuse s on renewing condence in elec ted ocials and civ il servants,
notably by reviewing ex isting eth ical and professiona l conduct frameworks, tightening
rules on gift s, and tightening post-employment rules for employees tra nsitioning from the
public to private sector.117 While the prima ry focus of the Commission’s work targeted
public procurement and crime in the const ruction industr y, a brief review of the major
organizationa l themes in the recommendations demonstrates a focu s on major structural
change touching on ma ny aspects of Quebec industries and public system s, as well as an
eort to change at titudes and basic societal engagement wit h issues around corruption.
109 Ibid at 129-130.
110 Ibid.
111 Ferguson, supra note 3, ch 11 at 22-23.
112 Kuhn & Sherman, supra note 1 at 12.
113 Charbonneau Report, supra note 6, Part 5, ch 2 at 130.
114 Ibid a t 151.
115 Ibid at 166.
116 Ibid at 166-172. This recommendati on discusses the United States’ False Claims Act in gre at
detail and suggests ways i t could be transposed into the Quebe c context. Legal commentators
have considered this possibilit y and concluded that there are no obvio us legal barriers to the
adoption of a civil remed y for fraud in Quebec, althoug h such legislation would almost cert ainly
be challenged in the cour ts if it were passed: see Paul Daly, “Final Rep ort of Quebec’s Corruption
Inquiry: Recomme ndation of a False Claims Act” (24 November 2015), Paul Daly, Administrative
Law Matters (blog), online: 5/11/24/nal-report-
of-quebecs-corruption-inquir y-recommendation-of-a-false -claims-act/> archived at
perma.cc/E4NB-EEMP>.
117 Charbonneau Report, supra note 6, Part 5, ch 2 at 177-192.
APPEAL VOLUME 23
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IV. RESPONSES TO THE CHARBONNEAU REPORT
A. Reaction, Criticisms, and Implementation
After an ex tensive review of the Cha rbonneau Commission’s recommendations, thi s
paper will now turn to a cr itical asses sment of their goals, implementation, and utility.
e recommendations’ inherent value lies i n their broad application, their vision for
systemic chang e, and their responsiveness to central ch allenges in curbing corruption. A s
identied in Part III of th is paper, many of the recommendations respond directly to the
paramount obstacles of c orruption as identied by bodies like Transparenc y International.
Examples include cha nging tendering rules to curb col lusive practices and expanding t he
scope of whistleblower protection legisl ation to encourage reporting. e guid ance oered
by the eight action strategie s also oers a framework for cohesive and struc tural change,
rather than a hapha zard approach. In this sense, the Charbonneau Commission oers a
sophisticated exa mination of corruption in public procurement, and has the potenti al for
major structura l reform in this industry in Quebec.
Reaction to the eect iveness of the Charbonneau C ommission has been va ried. One
commentator made the following com ment regarding its recept ion: “[w]hile the
commission had the ma kings of a potential political bombshell, t he nal report was met
with little accla im, and commentators have been quick to d ismiss the inquir y as a […]
failed mission.118 ere were su ggestions of political inuence and i nghting among the
members of the Commission, and t he report has been called a n “expensive disappointment”
with its cost of approximately C AD45 million, which failed to yield hig h prole political
arrests.119 However, the report has a lso been defended as a valuable contribution to good
governance, notably by exposin g the true scale of corruption in Quebec and generatin g
recommendations which wi ll lead to, and perhaps have al ready resulted in, mean ingful
change. On this basis, the Charbonneau Commission can not simply be written o as
an expensive fai led venture. As this paper has sought to demonstrate, it represents a n
unprecedented exami nation of corruption in public procurement and an opportunity to
generate systemic reform.
In terms of implementation, Quebec’s Liberal government moved quickly to begin
implementing certain re commendations. Justice Minister Stéphan ie Vallée publicly avowed
the government’s commitment to enact the recommendations, a n estimated 80 percent
of which require legislative or regulatory amend ments.
120
And Quebec’s Liberal Party
recently announced t hat “[o]ver 80 [percent] of the recommendat ions have been realized
or are in the process of being i mplemented.”121 is is reected in the specic leg islative
changes addre ssed in the next sec tion of this paper, as well as se veral bills which have
recently been introduced in Quebec to respond to specic recommendations m ade by
118 Daniel Binette, “The Charbo nneau Commission’s Underappreciated Contr ibutions to Fighting
Corruption in Quebec ”, (15 Janu ary 2016), The Global Anticorruption Blog: Law, Social Science, and
Policy (blog), online: /globalanticorruptionblog.com/2016/01/15/the-Charbonneau-
commissions-underappreciated-contributions-to-ghting-corruption-in-quebec/> archived at
.
119 Ibid.
120 Sarah Leavitt, “Charbonneau commission: Quebe c to create public works authorit y”, CBC News
(24 March 2016), online:
liberal-government-recommendations-1.3505437> archived at /perma.cc/9YTB-5TZ9>.
121 Parti Libéral du Québec, Annonce Gouvern ementale, “Creating the base for a new Qu ebec”
(8 December 2017), online:
quebec/> archived at .
138
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APPEAL VOLUME 23
the Charbonneau Comm ission, although they have not yet been enacted.122 Despite the
government’s professed commitment to enact the Charbonne au recommendations, some
of the proposed legislation has been criticized as fa iling to get to the heart of corruption
problems, or even as being counterproductive.123 Additionally, there are questions as to
whether the Commission ha s made any dierence regarding genera l opinions about the
ght against corruption; allegations of corr uption continue to emerge, and the media
has asserted t hat “Quebecers don’t seem to think much has changed on the corruption
fr ont .”
124
Nevertheless, I suggest the recommendations have at t he very least a strong
potential for major structu ral reform in public procurement in Quebe c. Time will tell
whether that potential i s borne out.
B. Le gislative Responses to the Charbonneau Report
is paper will now add ress specic legisl ative responses to public procurement which
have been enacted as a resu lt of the Charbonneau Comm ission. However, we must
rst acknowledge t hat law reform comes about in a var iety of ways that ex tend beyond
concrete legislative cha nge. While the Charbonneau Commis sion has value in acti ng as
a catalyst for new leg islation, it also achieve s indirect law reform in more subtle way s.
Systemic corruption itself is reec ted in both formal institutions as well a s social norms
and cultura l beliefs.125 is mirrors the formal a nd informal manifestat ions of law reform.
e Charbonneau Commi ssion has wrought cha nge in generating forma l and informal
discussions around c orruption in public procurement, bringing cr itical issues to t he
fore in Quebec society, and perhaps positively a ecting genera l public opinion in these
regards. Such subtle changes are par ticularly impor tant at a time where there has been
a crisis of public condence in governa nce in Quebec. Wh ile legislative cha nge is thus
worth consideration, we must be ca reful to not place undue emphasis on these formal
changes without bein g aware of the deeper ripple eects that may spread in more in formal
ways as a result of the Commission’s work. An increased awareness of corruption in
public procurement, through informa l discussions, med ia publicity,
126
and academ ic
122 As of November 2016, six Charbonneau-related bills had been intr oduced by the Quebec
government on such topics as p olitical nancing, whistleblow ing, professional orders, the
establishment of a central pr ocurement authority, and UPAC: for a brief descrip tion, see Andy
Riga, “Charbonneau Commissi on report: One year later, has anything c hanged in Quebec?”,
Montreal Gazette (23 November 2016), online:
Charbonneau-commission-report-one -year-later-has-anything-changed-in-queb ec> archived
at . More recently, several bills have be en
introduced to respond to recom mendations around decreasing vio lence and intimidation in
Quebec’s constructi on industry, and to increase the power of the R egie du batiment du Quebec
around issuing licences under th e Building Act. See Bill 152, An Act to amend various labour-related
legislative provisions mainly to give eect to certain Charbonneau Commission recommendations,
1st Sess, 41st Leg, Quebec, 2017. See also Bill 162, An Act to amend the Building Ac t and other
legislative provisions mainly to give eect to certain Charbonneau Commission recommendations,
1st Sess, 41st Leg, Quebec, 2017.
123 Rig a, supra note 122.
124 Ibid.
125 For further discussion on systemic corruptio n reected in both formal and inf ormal institutions,
and the dierences bet ween them, see Saint-Martin, s upra note 20 at 78-81. I note for
completeness that in his discussi on of formal and informal institutio ns, Saint-Martin cautions
against an overreliance on the con ceptual use of “systemic corruption” gen erally as a way
to understand and respo nd to cycles of corruption, a term whic h may not provide sucient
allowance for human agenc y and may not be the best concept to explain t he persistence of
systemic corruption in increasingly advanced welfare states.
126 I suggest that media publicity is an import ant driver of structural change, by f ocusing social
attention on issues such as ramp ant corruption. However, it should be noted that t here can be
adverse eects of su stained media scrutiny on such topi cs. See, for example, Reeves- Latour &
Morselli, supra note 46 at 15, where the auth ors consider the role of the media in Qu ebec’s anti-
corruption eort s, and note that while increased media s crutiny has raised societal awarene ss
about corruption on an unpr ecedented scale, it can also arbitr arily aect strategic prose cution
choices and may threaten whistleb lowers if investigative strategies be come too invasive.
APPEAL VOLUME 23
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commentary— often stemming f rom direct reactions to t he Charbonneau Commi ssion
—is also an i mportant driver of law reform a nd structura l change.
i. The Integrity in Public Contracts Act
Bill 1, or the Integrity in Public Cont racts Act,127 was the rs t bill passed by the new
Parti Quebecois government a fter the defeat of the Liberal government in 2012.128 e
Charbonneau Commi ssion was already underway at t his point. e new government acted
preemptively in passing th is anti-corruption measure to curb t he various practices that were
coming to light as a resu lt of the Commission’s work. Public procurement was at that time
regulated th rough the ACPB, which was signi cantly amended in the Integrity in Public
Contracts Act. e existing re gulatory fra mework was deemed insu cient, and the new
government—in response to the Commission and in an attempt to dist ance itself from
the scandal s that beset the Liberal government—made dra matic changes in the Integ rity
in Public Contracts Act. e hea rt of these cha nges was a pre-authoriz ation requirement
obligating any enterprise (not only those within t he construction industry) that wi shed to
contract with a public body to rst apply to t he AMF for authorization.
129
It was envisioned
that the AM F would work closely with UPAC to exercise its new powers.
130
Authoriz ation
would be based on an as sessment of the enterprise’s integrity, and the AMF would have a
broad discretion to refuse a n enterprise that failed to meet a requisite sta ndard of integrity.
e system of pre-authorization established by the Integrit y in Public Contracts Act h as
attracted criticism. L egal commentators, on rev iew of the bill, have asserte d that “the
application of the new law is likely to be f raught with dic ulties and challenged by
stakeholders.”
131
While that leg islation aims to ensu re that any enterprises w ishing to
contract with public bodies in Queb ec demonstrate a high th reshold of “unassailable
integrity,” it is maligned as allowi ng a broad discretion leading to unpredicta ble results.
132
Professor Graham Steele, i n his analysis of the bill, noted t he signicant dierences be tween
automatic and discretiona ry refusals for pre-authori zation.133 e AMF has the discretion
to refuse an authoriz ation “if the enterprise concerned fails to meet the high standa rds
of integrity that the public is entit led to expect.”134 Steele denounced the problematically
subjective nature of thi s provision and the lack of clar ity as to what might result in a
refusal, pa rticularly since none of the lang uage used in the provision is a legal ter m of art.
135
Steele considered some of the bill’s frai lties with regards to its objectives. W hile the bill had
a clear objective to restore integrit y in public procurement, it also had a political objective to
restore public condence in procurement proces ses. Steele assigned this politic al objective
as responsible for some of the bill’s problems, particu larly the speed with which it was
127 Integrit y in Public Contracts Act, SQ 2012, c 25.
128 Steele, supra note 76 at 72.
129 Ian Gosselin & Antoine Pellerin, “Public Contracts i n Quebec: A Question of Integri ty” [2013] J
Can C Construction L 1 at 2.
130 Ibid a t 12.
131 Ibid at 2.
132 Ibid at 13.
133 Steele, sup ra note 76 at 77. See also Ferguson, supra note 3.
134 Integrit y in Public Contracts Act, supra note 127, s 21.27. Th is discretionary criterion has b roadly
attracted criticism , although it was assessed and uphel d by the Quebec Superior Court l ess than
a year after its enact ment. For a discussion of these considera tions, see Clementine Sallee & Liv iu
Klaufman, “Public Procu rement in Quebec: New Authoriz ation Regime under Judicial Scru tiny”,
(12 June 2013), online: Blake, Cassels & Graydon LLP 8/Gove
rnment+Contrac ts+Procurement+PPP/Publi c+Procurement+In+Que bec+New+Authoriza tion+R
egime+Under+Judicial+Scrutiny> archived at perma.cc/W9JX-6XZL>.
135 Steele, supra note 76 at 79.
140
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passed and the lac k of evidence based decision-ma king.136 He noted with surprise t hat
there was “not a single mention of any of the international a nd national anti-corruption
instruments” in the debate s around Bill 1, nor was there a reference to a nti-corruption
literature or expert adv ice.137 He commented that the Charbonneau C ommission heard
from two witnesses f rom New York City, who testied that pre-authorization is only a
small part of a much la rger anti-corruption s ystem, and that it could act ually do more
harm than go od if not properly integrated within a la rger system.
138
Steele concluded
with the following assertion: “there has to be a serious doubt whet her Bill 1 represents a
sustai nable anti-corruption a genda.”139
Steele’s criticisms of Bill 1 illuminate t he value of the Charbonneau re commendations.
Steele noted that legislative ch ange alone, part icularly when it does not capita lize on
expert advice or proper research on the issue, is insu cient. He pointed to jurisdictions
such as the European Union or New York City, which do not rely on legislative change
alone but rather “enforcement, measurement, reporting, and correction” as the most
eective anti-corruption agendas.
140
e Commission’s true potential lies in thes e kinds of
nuanced change s, rather than callin g only for legislative change. Whi le the Commission
commented on public procurement legislation, it also a rmed systemic, high-level re form
which focused on enforcement, mea surement, and reporting. is is demonstr ated in the
recommendations around whi stleblower protection, establishing a central procurement
authority, and focusing on monitoring procurement processes and building e xpertise
around best practic es. e Commission capita lized on exper t testimony and foreign
experience to sugges t a broad spectrum of cha nge, extending beyond legislation, and in
so doing set Quebec on a path to achie ving a similarly nuanced anti-corr uption agenda.
Indeed, Quebec’s approach to anti-corruption in lig ht of the Charbonneau inquir y has
been described as a rad ical regulatory shi ft which represents a more punitive model.
141
is
relates to Steele’s comment above, in that enforcement and correc tion measures are t he
most eective anti-c orruption agendas, beyond simply legislative chang e. Quebec’s anti-
corruption measures have h istorically been lacking in enforcement mea sures, penaltie s,
and collaboration. Bet ween the establishment of UPAC and the many recommendations of
the Commission, the new anti- corruption agenda has been chara cterized as more punitive
in nature.142 A more punitive model carries some unforeseen challenges —for example,
collaboration between agencies working with U PAC can be dicult, and increa sed
criminali zation brings the li kelihood of complex oences a nd contested litigation.
143
However, the more punitive model has been seen by some as neces sary to promote respect
for laws by actors in public procurement.144 In t his sense, the nuanced suggestions ma de
by the Commission include potential for bet ter monitoring and enforcement of anti-
corruption measures, i n an eort to root out some of the rampant corruption in Quebec’s
public procure ment industry.
136 Ibid at 82- 83.
137 Ibid at 10 2-103.
138 Ibid at 107-108.
139 Ibid a t 117.
140 Ibid.
141 See Reeves-Latour & M orselli, supra note 46, at 5.
142 Ibid at 7- 9.
143 Ibid at 19-20.
144 Ibid.
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ii. Quebec’s Bill 108
On June 8, 2016, the Quebec government introduced Bill 108, An Act to facilitate over sight
of public bodies’ contracts and to establish th e Autorité des marchés publics.
145
is bill proposes
establishing t he Autorité des marchés publics (“AMP”) as a central authorit y to take over
responsibility from the A MF with regards to overseeing public contracts.  is bill is a
direct response to the C ommission’s s uggestion that Quebec enact a public procurement
authority to ensure the integrit y of public procurement in Quebec. e bill envisions
the AMP ta king on all existing responsibil ities currently held by the A MF (namely, the
pre-authorization of public contracti ng bodies in Quebec), as well as overseeing all ot her
contracting proces ses determined by the government.146 is bill al so amends the ACPB
in a number of ways. ese amendments rel ate primarily to when the government might
require an enterprise to obtai n authorization and when authorizations mig ht be cancelled
by the AMP, and they establis h a one year waiting period for a n enterprise that has
withdrawn or had its applicat ion cancelled before it can re-apply.147 e actual process to
obtain prior authorization for public contract s, however, remains unaltered.148 e bill al so
tasks the A MP with maintainin g the register of enterprises ineligible for public contracts.
149
Bill 108 helps to better situate Quebec’s pre-authorization scheme withi n a more nuanced
public procurement framework. Se ction 21.27 of the ACPB, whic h contains the provision
allowing dis cretion to refuse authorization if an enterpri se “fails to meet the high s tandards
of integrity” expecte d by the public,150 is not amended by the bil l.151 is means the
same “startli ng subjectivity” ra ised by Steele would still be present in the legislation.152
However, the broad discretion might be tempered somewhat since pre-authorization
would now be established with in the concentrated expertise of the AM P, whose mis sion
would include not only pre-authorization but also genera lly overseeing all public contracts
and ensuring integr ity and ongoing compliance w ith public procurement processes. Bi ll
108 has been lauded as a signi cant change that would bring positive developments and
greater uniformit y to Quebec’s public procurement processes.153 It responds direc tly to
one of the most central recommendat ions made by the Commission with regard s to public
procurement. Bill 108 was assented to on Dece mber 1, 2017 and came into force on that
same day, so its actual implementation and pra ctical impacts remain to be seen.154
145 Bill 108, An Act to facilitate oversight of public bodie s’ contracts and to establish the Autorite des
marches publics, 1st Sess, 41st Leg, Quebec, 2016 [Bill 108].
146 Natalie Beauregard & Marjol aine Verdon-Akzam, “Publi c contracts: Quebec introduce s the
Autorite des marches publics ”, (17 June 2016), online: Osler, Hoskin & Ha rcourt LLP
osler.com/en/resources/regulations/2016/public-contracts-quebec-introduces-the-autorite -d>
archived at .
147 See Bill 108, supra note 145, at the explanator y notes for a list of the central changes pro posed in
the bill.
148 Beauregard & Verdon-Akzam, supra note 146.
149 Bill 108, supra note 145 at cl 20(4).
150 Integrit y in Public Contracts Act, supra n ote 128.
151 At the time of writing, the bill ha d very recently been assented to an d the nalized version is
not yet available. However, while it has be en subject to numerous amendment s since it was
introduced, none of them ap pear to relate to the discretion establi shed in section 21.27 of the
Act respecting contracting by public b odies, nor to any of the central aspec ts of the bill which have
been considered in this par t of the analysis.
152 Steele, supra note 76 at 79.
153 Marc-Alexandre Hudon, Madeleine Renaud & Dominic Therien, “Important Proposed
Modication to Quebe c Public Procurement Rules” (20 June 2016), online: McCarthy Tetrault LLP
archived at .
154 An Act to fac ilitate oversight of public bodies’ contracts and to es tablish the Autorite des marches
publics, SQ 2017, c 27.
142
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iii. Quebec’s Voluntary Reimbursement Program
A nal legislat ive change which merits c onsideration in the wake of the Ch arbonneau
Commission is the Act to en sure mainly the recovery of amounts improperly pai d as a result
of fraud or fraudulent tactics in connection with public contracts (“Recovery Act ).155 is
legislation provides except ional measures for the recovery of a mounts improperly paid due
to fraud in connection with all public contra cts, not only those withi n the construction
in du st ry.156 It was ena cted in April 2015, meaning the Quebec government aga in acted
preemptively, passing legislation to respond to the concern s raised by the Comm ission
before the nal report was released. e Recovery Act has been called a “unique and
innovative regime” to recoup amount s lost in public contracts due to fraud.157 e Recovery
Act applies to para-municipal and non-prot organi zations as well as public bodies. e
Recovery Act envisions a voluntary reimbursement program, wherein an indiv idual or
corporation which has improperly received funds during the course of a public project
can repay those amounts in exchange for a relea se from the aecte d public body.158 e
legislation creates numerous inc entives to encourage par ticipation, including an ex press
provision that anyth ing disclosed within the fr amework of the program is condential.159
While the progra m is designated as being “voluntar y,” parties that fai l to avail themselves
of this reimbursement option may expose t hemselves to civil litigation for the recover y of
those amou nts.160 It should be noted, however, that in the event civil recourse is in itiated,
constitutional cha llenges to the statutory regime are likely.161 Specically, the Recovery
Act establishes a presumpt ion that any body which ha s participated in fraudulent tactics
in the public procurement process is presu med to have caused injury to t he public body
concerned, and this st atutory presumption may well be t he target of a constitutiona l
challenge in t he event that civil recourse is initiated t hrough the Recovery Act.162 Ul tim ate ly,
it is a unique piece of legislation which i s backwards looking, t argeting the drai n on public
funds wrought by corr uption and an attempted recovery of those amounts.
V. A COMPARATIVE ANALYSIS WITH FEDERAL AND
INTERNATIONAL PROCUREMENT
A. Federal Public Procurement Regime
is paper will c lose with a consideration of the Cha rbonneau Commission’s
recommendations as compare d to both the Canadian federa l public procurement regime
and international sta ndards under the Org anisation for Economic Cooper ation and
Development (“OECD”).
Canadian federal procurement laws and policies tend to be more sophisticated than
provincial procurement schemes.
163
Accordingly, while the di erent level of detail in federal
155 An Act to ensure mainly the recovery of amounts improperly paid as a result of fraudulent tactics in
connection with public contracts, SQ 2015, c 6 [Recov ery Act].
156 Pierre-Jerome Bouchard e t al, “Public contracts and Bill 26: recover y of amounts improperly
paidand changes to the AMF auth orization regime” (28 April 2016), online: McCarthy Tetrault
LLP archived at
cc/8VLE-Q5AV>.
157 Yvan Houle, “Quebec ’s Voluntary Reimbursement Program: Lo oking for a Few Volunteers” (2016)
J Can Construction Law 1 at 2 .
158 Recove ry Act, supra no te 155 at ss 3 and 22.
159 Ibid at s 7.
160 Houle, supra note 157 at 8-10.
161 Ibid at 10. See also Bouchard et al, su pra note 156, where the authors asser t that the
constitutional validity of these rules could be challenged.
162 Houle, supra not e 157 at 8 -9.
163 Ferguson, supra note 3, ch 11 at 40.
APPEAL VOLUME 23
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and provincial regime s should be borne in mind, it is usef ul to assess t he Commission’s
recommendations by comparing t hem to a more detailed and comprehensive procurement
scheme. Public Works and Government Services C anada (“PWGSC”) is the ma in
procurement arm of the Cana dian federal government, and it is responsible for procuri ng
goods and serv ices for the majority of federal depart ments.164 Federal public procurement
is based on the following c ommon law principles: the two-contra ct framework set out
in Canadia n jurisprudence, that only c ompliant tenders may be accepted, and that bids
must be evaluated fa irly and equally.165 Federal procurement is a lso subject to Canada’s
obligations under trade agreements, such as the Nort h American Free Trade Agreement
and the Agreement on Internal Trade (an intergovernmental trade agreement replaced
by the Canadia n Free Trade A greement in 2017), which f urther dierentiate federal a nd
provincial procurement proce sses.166 PWGSC, as the principal purchasing a gent for the
government, must act in accorda nce with various leg islative and regu latory precepts, as
well as direct ives issued by the Treasury Board of Ca nada; however, PWGSC nevertheless
retains considera ble discretion to esta blish procedures a round public procurement.167
Canadian public procu rement is subject to the federal Integrit y Regime, which is
established and di rected by PWGSC. is federal fra mework operates to ensure integrity
in procurement processes through debarment, a process wherein suppliers are rendered
ineligible to do business with t he government. Certain oences lead to automatic
ineligibility, while others a re determined on a discretionary, case -by-case approach.
168
e
most recent Integrity Regi me, implemented in July 2015 (and amended in April 2016) is
the latest in a series of iterations d ating back to 2007. Legal commentators welcomed the
changes in t he latest Integrity Regime, as t he earlier regime on debarment was considered
to be so “inexible, pun itive and far-reaching” th at it was actual ly counterproductive
to its objective of furtheri ng integrity.169 Under the old regime, suppliers deemed to be
ineligible faced a mand atory 10 year period of ineligibilit y with no scope for reduction,
and no concomitant incentive for companie s to acknowledge and mitigate the conduct
resulting in ineligibility.170 e new regime has b een applauded for reducing the length of
debarment from 10 to 5 years through reme diation in certain circumst ances and adding
a degree of transpa rency to the manner in wh ich ineligibility decisions will be made.
However, Canadian federa l procurement is still an incredibly strict regime a s compared
to foreign jurisd ictions.171
164 Gerry Stobo & Derek Leschinsk y, Pocketbook on the Canadian Public Procurement Regime
(Borden Ladner Gervais, 2009), online: en/News-And-Publications/documents/
publication_1799.pdf> archived at [BLG Pocketbook]. See als o
Public Services and Proc urement Canada, “PSPC Servi ces: Buying and Selling”, online:
www.tpsgc-pwgsc.gc.ca/app-acq/index-eng.html> archived at 5YCD-Q6Y6>.
165 For more on these common law principl es, see BLG Pocketbook, supra no te 164 at 6-8.
166 Ibid at 10.
167 Ibid.
168 See Public Works and Government S ervices Canada, “About the Integrit y Regime”, online:
html> archived at
MJV6-WPNR>. The regime appli es across government to agreements with a t ransaction value
over CAD10,000 and is made up of three par ts: the Ineligibility and Suspension Policy, the integrity
directives, and the integ rity provisions. Ineligibili ty may result if suppliers have been convi cted
of certain oences (under the Criminal Code, Competition Act, or Financial Administration Act, for
example), if suppliers have entered i nto subcontracts with an ineligibl e supplier, or if suppliers
have provided false or mislea ding information to Public Servi ces and Procurement Canada.
169 Milos Barutciski & Matthew K ronby, “Canadian Government Overhauls the Inte grity Regime
for Suppliers” (6 July 2015), online: Bennett Jon es LLP https://www.bennettjones.com/en/
Publications-Section/Updates/Canadian-Government-Overhauls-the-Integrity-Regime-for-
Suppliers> archived at .
170 Ibid.
171 Ibid.
144
n
APPEAL VOLUME 23
ere is value in comparing deba rment under the federal Integrity Regi me with the system
of pre-authorization that emerged i n Quebec in tandem with, and perhaps as a resu lt of,
the Charbonneau Com mission. As set out above, entities wishing to enter public contra cts
in Quebec must rst apply for prior authorizat ion to the AMF, a responsibility which
the Commission recommended be re assigned to a centra l procurement authority. is
central procurement authority wou ld be responsible for the integrity of procurement in
Quebec, much like the PWGSC on a federa l level. Conversely, PWSGC makes ineligibility
determinations “on its own initiative, upon rec eiving a request from a supplier to conduct
a review to determine its inel igibility, or upon receiving a request from a depa rtment,
agency or other federal entit y to which the policy applies.”172 us the timing and
triggering of the t wo processes are dierent, with the onus on entities in Q uebec to seek
prior authorization while PWGSC ty pically make s determinations on its own in itiative
(although under the federal regime suppliers can request a n advanced determi nation of
eligibility).173 Debarment has also been decried a s being inexible and for foc using too
heavily on punishment and deter rence, the domain of criminal l aw, rather than protecting
the integrity of federa l procurement.
174
In this sense, pre-aut horization imports more
discretion than t he mandatory debarment period, with the licensing aut hority having a
broad discretion as to when to decla re an entity ineligible. However, as discuss ed in Part IV
above, this discret ion has been condemned as being too broad and leadi ng to problematic
and unpredictable results. Discretion is clearly an important element in either regime,
with too little arg uably aorded under the federal reg ime and too much under the current
Quebec regime. Discretion must be s ubject to clear guidance and es tablished parameters,
and a middle ground is ar guably necessary between t hese approaches.
Critics of the federal Integ rity Regime have also noted that it fai ls to properly distinguish
between crimi nal law aims versus good governance in public procurement, and have
called for an integ rity regime that is remedial, r ather than punitive.175 As compa red to
the federal debarment reg ime, which argu ably prioritizes punish ment at the expense of
remediation, the public procurement frame work suggested by the Commission (which
includes the pre-authorization scheme) focuses extensively on educationa l and remedial
components. While some commentators have deemed Qu ebec’s recent regulatory shift in
the eld of anti-corruption as bei ng punitive in nature, t his characterization is tethered
closely to the expansive power s of the UPAC rather than the Charbonneau Commi ssion’s
recommendations specica lly.
176
While some of the Commi ssion’s recommendations
are more punitive in nature in at tempts to minimiz e the inltration of orga nized crime
into the construction indust ry, I suggest they a lso demonstrate strong educat ional and
remedial mechanisms which counterba lance the punitive natu re of other aspects of
Quebec’s anticorruption regime. Such components include recommendat ions to educate
procurement stakeholders, coac h contracting authorities, and act quickly to respond
to compla ints.17 7 In this sense , the Charbonneau recom mendations and exist ing pre-
authorization scheme have the potentia l to better encourage integrity in present and
future conduct, rather t han punishing past conduct and debarring entities for periods
of 5 to 10 years on that basis. However, it should be noted that there is a n oce of the
Procurement Ombudsman at the federa l level, whose mandate is to rev iew practices of
172 Public Works and Gove rnment Services Canada, “In eligibility and Suspension Polic y” at s 9(a),
online: archived at
perma.cc /Q3SK-V25Z>.
173 Public Works and Gove rnment Services Canada, “About the Inte grity Regime: Frequently Aske d
Questions”, online: https://www.tpsgc-pwgsc.gc.ca/ci-if/faq-eng.html#a1> archived at /
perma.cc/HBP8-7YYZ>.
174 Barutciski & Kron by, supra note 16 9.
175 Ibid.
176 See Reeves-L atour & Morselli, supra note 46 .
177 Charbonneau Report, supra note 6, Part 5, ch 2 at 96 .
APPEAL VOLUME 23
n
145
departments (including PWGSC) for fa irness and transparency, review complaints, a nd
issue reports on the resu lts.178 In this sense, t he work of the Ombudsman might import
an important monitoring and reporting funct ion which has been decried a s lacking in
the federal Integrit y Regime.
Beyond debarment and pre-authorizat ion, there are other useful comparison s to be drawn
between the Cha rbonneau recommendations and federal procurement. e r st of these
is rules around tenderi ng processes. e Comm ission recommended that procurement
in Quebec depart from t he lowest compliant bidder approach, a recommendation which
accords with federa l procurement policies. For example, the treatie s mentioned above which
impose obligations on the federa l government generally require that contracts b e awarded
to the most qualied bidder, considering price and non-related price factors.179 Si mil arl y,
the Treasury Board of Ca nada’s federal Contracting Policy, which governs aspects of public
procurement, states that govern ment procurement should strive for an optima l balance
of overall benets, which requires consideration of all rele vant costs and fac tors, rather
than the basic contractual costs alone.180 ese aspec ts of federal procurement policies
demonstrate that Quebec would l ikely be well-suited to follow the recommendation that
the lowest compliant bidder approach be abandoned, so t hat public contracts are not
only awarded to the cheapest project. As discus sed in Part III, th is approach comes at
the expense of quality in public works and leads to gre ater opportunities for collusion.
However, as I suggested in Part I II(C)(ii) above, such a recommendation would best be
implemented under the supervision of a centra l procurement contracting aut hority, to
reduce any risks of corr uption from the unfettered discret ion of procuring agencies to select
the best intersection of price a nd quality. Further, the Commission recommended that t he
government import more exibility into t he deadline for tenders, which is currently set at
15 days. is recommendation accords with d iscretion around tendering deadline s at the
federal level. e Ag reement on Internal Trade, which applies at a federal level, stipulates
that each par ty shall be a orded a reasonable period to submit a bid, depending on the
nature and complexity of t he project at hand.
181
us, the Charbonneau rec ommendations
pertainin g to tendering rules and deadli nes accord with the more detailed reg ime existing
at the federal level.
Further comparisons b etween federal procurement and t he Charbonneau recommendations
involve ethics around employment in public and private sec tors, whistleblower protection,
and increased citiz en involvement. First, the Commission recommended tighteni ng rules
around employees transitionin g from the public to private sector.
182
is recommend ation
mirrors the federal g overnment’s Policy on Conict of Interest and Post-Employment,
which imposes simi lar restrictions on employees t ransitioning from the public sec tor to
work for a private entity with which they h ad signicant ocial dealin gs.183 Second, the
Charbonneau recommendat ions regarding whi stleblower protection actual ly seem to
exceed protections at the federa l level. For example, Transparency International Can ada
has asserte d that Canada’s current legal frame work for whistleblowing is outdated, noting
178 Canada, Oce of th e Procurement Ombudsman, “Th e Oce: Our Mandate” (3 March 2017),
online: archived at perma.cc/ZSZ6-G6UG>.
179 Barutciski & Kro nby, supra note 16 9.
180 Treasury Board of Canada, “Contract ing Policy, 9: Best Value”, online:
doc-eng.aspx?id=14494> archived at /perma.cc/2H7Y-Y35X>.
181 Charbonneau Report, supra note 6, Part 5, ch 2 at 107.
182 Ibid at 183. Specically, recommen dation 55 requires that any employees involved with
the contract management o f a public entity wait until one year af ter termination of their
employment to accept a positio n with a private sector entity w ith which they had signicant
dealings.
183 Treasury Board of Canada, “Policy o n Conict of Interest and Post-Employm ent”, online:
www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=25178> archived at 44>.
146
n
APPEAL VOLUME 23
that there is a lack of federa l or provincial protection for publ ic sector whi stleblowers.184
erefore, the Charbonneau rec ommendations to improve whistleblower protection and
witness immunity, if enacted , may in fact surpass para llel protections at the federal level.
185
Finally, the central recom mendation made by the Commission around citiz en engagement
was the sugge stion of enacting legislation to mirror the United States’ Fal se Claims Act.186
ere is no similar legi slation that exists at the feder al level, although some commentators
have advocated for such a chang e.187 Accordingly, if a False Claims Act were enacted in
Quebec, it might pave the way for a simi lar change at the federal level, to increa se citizen
involvement in the ght again st corruption.
B. International Public Procurement Standards
Finally, the recommendations ca n also be critica lly assessed w ith reference to the work
of the OECD, an organization whose members form the bulk of the world’s advanced
economies, including Ca nada. e OECD operates as a for um in which governments
share work, collect exper tise, and set internat ional standa rds in a variety of areas.188 In
light of this, it is par ticularly helpfu l to assess the Cha rbonneau recommendations a nd
their potential for reform in Quebe c against t he expertise of the OECD. In 2009, the
OECD produced a set of principles to achieve integrit y in public procurement.
189
e
Charbonneau recommendat ions accord in large pa rt with the sugg ested reforms set out
by the OECD. First, the OECD criticized the fa ct that public procurement reforms have
focused predominantly on t he formation of contracts stage only, which is construe d as the
“tip of the iceberg.”
190
e OECD identied a need for governments to prevent corruption
in the entire procurement cycle, rat her than focusin g almost exclusively on the contract
formation stage. is broad c hange aec ting every a spect of procurement is precisely
what the Charbonneau rec ommendations seek to trigger. While some recommendat ions
focus on the rules a round tendering and contract formation, the majority ex tends beyond
formal contract management to touch on every aspect of public procurement, as well
as consolidating e xpertise and improving knowledge around be st public procurement
practices generally.
Beyond the basic premise th at reform must focus on every stage of public procurement,
numerous other Charbonneau recom mendations accord with principles enunciated by
the OECD. First, the OECD concluded that the needs assessment stage i s particula rly
184 Government of Canada, Open Government, “Idea deta ils: Enhancing Whistleblower Protec tion”,
online: ncing-whistleblower-protection> archived at https://
perma.cc/LQ53-SBMF>.
185 For calls to improve whistleblower prote ction in Quebec, see Syndic at de professionnelles
et professionnels du gouvernement de Quebec, Whistleblower Protection: For a Quebec with
integrity (2014: Service de recherche), online: /documents/
Protection-divulgateurs_Vanglais).pdf> archived at .
186 Charbonneau Report, supra note 6, Part 5, ch 2 at 166.
187 See Kaitlyn Mason, “Incen tivizing Integrity: Adoptin g a Canadian False Claims Act” (30 June
2016), Calgary Chamber Blog (blog), online: default/les/
user/les/Incentivizing%20Integ rity%20-%20Adoptio n%20of%20a%20Canadian%20False%20
Claims%20Act.pdf> archive d at . Mason notes that current
federal laws to protect p ublic procurement are decient and s hould be reformed, parti cularly
in light of the ambitious infras tructure spending plan tab led by the federal government in the
2016 Federal Budget. Mason thus recommends a False Claims Act as an ecient enforcement
mechanism, particul arly based on its success in the United States .
188 For more information on the OECD, see Th e Organisation for Economic Cooper ation and
Development, “About”, online: archived at /perma.cc/5JWF-
VHX V>.
189 OECD, OECD Principles for Integrity in Public Procurement (2009), online:
ethics/48994520.pdf> archive d at .
190 Ibid at 9.
APPEAL VOLUME 23
n
147
vulnera ble to corruption and pol itical interferenc e.
191
e Commission’s recommendation
to establish a centra l authority on procurement, particularly to assist public contracting
authorities that have insu cient expertise at the needs as sessment stage, responds direct ly
to this concern. e OECD integrit y principles focus on the better mana gement of public
funds and the need to en sure that procurement ocials meet “h igh professional standards
of knowledge, skil ls and integrity.”192 Again, the Commission pa id particular attention to
these principles by enactin g a raft of recommendations focused speci cally on reviewing
and enhancing ex isting eth ics and professional conduct fr ameworks, as set out in Part
III(C)(iii) above. e OECD also construed, as a c entral principle, close cooperation
and high stand ards of integrity as between government and the private s ector.
193
e
Commission’s recommendations mirror thi s principle with a specic focus on depoliticizin g
procurement processes, as wel l as ensuring a “cooling-o ” period for employees transitioning
from the public to private sector.
Finally, the OECD stressed the impor tance of establishing a clea r chain of responsibility,
eective control mechan isms, and empowering ind ividual involvement where “[d]irect
control by citizens can complement these t raditional accou ntability mechan isms.”194
e Charbonneau recommendations (set out in Part III(C)(ii) and (iii) above) accord
thoroughly with the se principles, focusing in part on proper enforcement and complaint
management, and clea rly designating chains of aut hority as between control bodies such a s
the PPA and UPAC. e recommendations are also butt ressed throughout by suggest ions
to empower individual act ion and citizen involvement, through general educational
endeavors as well as the e stablishment of legislation to allow citizen s to pursue allegations
of fraud on behalf of the state. Empowering individua ls as agents of cha nge is reected
both in the recommendations a nd in the action strategies, set out in Part II I(C )(i) above,
as well as the recommendation that Quebec adopt a law mirroring the America n False
Claims Act.195 is brief review of the Charbonneau recommendations as compa red to
principles enunciated by a sophisticated body suc h as the OECD demonstrates t hat the
Commission’s work aligns broadly with ke y concerns and sugge stions for reform from
expert international communities in the g ht against corr uption, and lends credence to
the assertion th at the Charbonneau report o ers much by way of structura l reform to
target corruption in public procu rement in Quebec.
CONCLUSION
In conclusion, the Charbonneau Com mission has been a unique opportunity for a de tailed
and sophisticated ex amination of corruption in a n industry sec tor which has long been
accepted as one of the most prone to corruption. e Comm ission’s recommendations
have the potential for major struct ural reform in public procurement, and I suggest t hat
the nature of the Commi ssion as a public inquiry does not undermine the val idity of the
recommendations. While public inquiries have some strateg ic value, the Commission
represented more than mere politica l grandsta nding. e recommendations were ba sed
on an extensive asse ssment of expert testimony, a consideration of domestic and foreign
experience, and a sound under standing of corruption generally. ey extended be yond the
“tip of the iceberg” of tendering rules and touched on ex tensive aspects of Quebec industries
and public systems. e recommend ations accord with and even surpass para llel federal
legislation in certain respects, a nd respond to what sophisticated i nternational entities
such as the OECD have identied a s central challenges in the ght against corrupt ion.
191 Ibid at 10.
192 Ibid a t 11-1 2.
193 Ibid at 12.
194 Ibid a t 13.
195 For more detail, see the disc ussion at note 116.
148
n
APPEAL VOLUME 23
While it remain s to be seen whether the Commission’s work will repair public condence
in government in Quebec, the recommendations have already led to legislative change,
provide a sound basis for reform, and are a va luable contribution to an examination and
understanding of public procu rement corruption in Quebec.

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