This is the 31st meeting of the Standing Committee on Access to Information, Privacy and Ethics.
We have two orders of the day. One is a very brief one, namely committee business dealing with the steering committee report to the full committee; and the second is to consider the annual report of the activities of the Conflict of Interest and Ethics Commissioner in relation to public office-holders under the Conflict of Interest Act for the fiscal year ended March 31, 2009, referred to our committee on Wednesday, June 17, 2009. The commissioner is with us.
Colleagues, what I would like to do first is to deal with the steering committee report. You have had circulated to you prior to this meeting a calendar of outstanding or pending work, or matters that have occurred subsequent to our return. The committee has reviewed all of those matters and slotted them in. We had a very good meeting—it didn't take very long—and we were unanimous that this would be a good starting point.
Now, as the members know, the committee at any time can propose amendments to its scheduled work, depending on the evolution or development of any other area, as well as any new items. I'm not going to go down the list, but I would indicate to you that there are five meeting days that have no business currently scheduled. They are November 26 and 30, and December 3, 8 and 10. So we do have room for additional work, or maybe amplification of work that is already listed here.
Are there any questions with regard to the steering committee recommendations to the full committee?
If not, is it agreed that we adopt this report?
(Motion agreed to [See Minutes of Proceedings])
The Chair: Thank you very much.
Our witness today is Mary Dawson, the Conflict of Interest and Ethics Commissioner.
Welcome, Commissioner. It's very nice to see you again. As you can see, we have a couple of new members on our committee. We thought it was important to bring before us all of our commissioners with whom we have matters in common, first of all, to deal with the business at hand, and secondly, to allow the members an opportunity to meet and hear you and to ask you some questions.
Today we're here with regard to your 2008-09 annual report on public office-holders, as referred to our committee.
I understand you have some opening remarks for us. I would first invite you to introduce the colleagues you brought with you and, second, to proceed with your brief statement.
Mr. Chair and members of the committee, thank you for inviting me to appear before you today. I am pleased to have this opportunity to speak about my 2008-2009 annual report relating to the Conflict of Interest Act and the work of the Office of the Conflict of Interest and Ethics Commissioner.
In my annual report I refer to the past year as one of consolidating and strengthening the foundation. Emphasis was placed on applying the act fairly and consistently and on communicating its requirements to public office-holders. My annual report addressed, as well, a number of areas of the act that present challenges. I will briefly outline some of the initiatives undertaken by my office in relation to these areas, but before doing so, I want to summarize our regular day-to-day accomplishments over the past year.
The bulk of the work of my office involves helping reporting public office-holders comply with the act on appointment and remain in compliance throughout their time in office. Some 950 individuals assumed new responsibilities as public office-holders in the last fiscal year, including about 500 reporting public office-holders. New reporting public office-holders go through an initial compliance process that involves submitting a detailed confidential report to my office. These reports are reviewed by staff, who discuss potential conflicts of interest risks with them and outline the steps they must take to comply with the act. Often advisers assist reporting public office-holders with complex arrangements, such as those involving trusts and outside activities. In addition to the initial compliance process, the act requires a formal review of compliance arrangements on an annual basis.
Over the past year, my office contacted over 900 reporting public office-holders to review and, where necessary, update the arrangements they had made previously to comply with the act. Reporting public office-holders are also required to make confidential disclosures and public declarations as needed throughout the term of their appointments. These are required in connection with the receipt of certain gifts, recusals, employment offers, and material changes to matters that need to be reported under the act. In addition, my office regularly receives phone calls, e-mails, and letters from current, former, and potential public office-holders with questions on the application of the act to specific situations.
Responding to these requests for advice is among the most complex aspects of our advisers' work, as most of the questions raised with my office involve situations in which the application of the act is not immediately apparent and for which there are no precedents. I'm particularly proud of the advisory work done by advisers in my office, and I believe it accounts in large measure for the infrequent need to conduct investigations. Between April 1, 2008 and March 31, 2009, I reported findings on three examinations relating to public office-holders. There were four other instances where members of the House of Commons raised concerns with me about possible contraventions of the act by a public office-holder. In each of these cases, I clarified for the members the specific requirements of the act in relation to the questions they raised, and they did not proceed with a formal request.
As noted earlier, one of my priorities over the past year has been to communicate to public office-holders the requirements of the act. My office developed a guideline and several information notices that have been posted on our website. We also held information sessions for ministerial staff and other public office-holders. We redesigned the website to make it more user-friendly, and we improved the public registry that contains the summary statements and public declarations of reporting public office-holders. We've implemented administrative procedures to assist reporting public office-holders who regularly receive gifts. In particular, my office has made formal arrangements with a number of offices, notably ministers' offices, where protocol gifts are frequently received, for regular reporting of gifts every few weeks .
In my annual report I identified a number of areas of the act that present challenges. These include sections relating to monetary penalties, divestment, post employment, and self-initiated examinations.
The act allows me to impose penalties of up to $500 for failures to meet a number of reporting requirements. After developing appropriate processes, including a system of reminder notices, my office implemented the regime in November 2008. Our approach reflects the intent of encouraging compliance with the act's reporting requirements rather than seeking to punish.
In September 2008 I issued one notice of violation, but I did not ultimately impose a monetary penalty in that case. Earlier this month I imposed an administrative monetary penalty for a failure to report the holding of an office in a corporation. I note that there is no penalty in the act for violations other than those involving a failure to report.
With respect to divestment, a second issue addressed in my annual report involves the act's divestment requirements. I noted my ongoing concern about what appears to me to be an over-breadth of the provisions that prohibit reporting public office-holders from holding controlled assets. The prohibition applies to all controlled assets held by a reporting public office-holder whether he or she is a minister, a ministerial staffer, a senior public servant, or a full-time member of a federal board or tribunal, and whether the controlled assets are held personally, in a joint account with a family member, as a trustee for a beneficiary, or as an executor of an estate.
My main concern with this prohibition is that it applies regardless of whether or not the controlled assets in question could place the reporting public officer-holder in a conflict of interest. It would appear that it goes beyond what would be needed to meet the act's stated purpose of minimizing the risk of conflict of interest. The breadth of the prohibition results in a significant number of difficult situations, such as trusts, executorships, and joint accounts.
The third issue I raise in my report involves the act's post-employment provisions. In particular, I note that it's difficult to assess whether reporting public office-holders are meeting their post-employment obligations and, more generally, how effective those provisions are, given a lack of reporting requirements.
A fourth issue I discussed in my annual report relates to my power to self-initiate examinations under the act. This would usually result from information coming to my attention through media reports or sometimes from private individuals. In cases where I consider launching an examination but ultimately decide not to, I cannot make known my reasons for not proceeding. This serves to protect the privacy of public office-holders. However, in cases involving well-publicized and controversial allegations, I find it unfortunate that I'm limited in my ability to make public my reasons for not pursuing a matter.
One last note on that before we begin, though, is that there are a number of complaints brewing. I can only confirm whether I have commenced an investigation under the act and can discuss no details of an investigation while it's ongoing. The report at the end is made public.
Finally, although it's not related to the Conflict of Interest Act, members may wish to know that this Friday, October 23, I will offer an information session on the recent changes to the members' code, which is not what we're talking about today. It was approved last June, but it affects all of you around the table. It will be part of the Library of Parliament's seminar series.
Mr. Chair, I appreciate the committee taking the time to review my report and examine these issues. I am happy to answer any questions you may have.
Thank you, Madam Dawson, for appearing before the committee once again.
Madam Dawson, as you and all Canadians are aware, there is an ethical debate taking place, raging in the country, that calls into question the very trust that people have for public office-holders, and the public is turning towards us here to find a way to resolve this particular issue. I understand from your commentary that although your title includes the word “ethics”, the mandate of the act, the rules by which you govern your investigations do not encompass that particular area.
You're quite aware of the debate that's taking place around these misrepresentations around phony cheques. You must have looked at this. Is it within your mandate to do an investigation into this particular matter?
Mr. Wrzesnewskyj, your time has expired.
I want to remind all honourable members and let new members know that under the Standing Orders of the House of Commons, the mandates of committees are laid out in section 108. Our committee deals with public office-holders. If it has to do with members of Parliament, it goes to the procedure and House affairs committee. These persons do not have to appear before our committee, and they can't be subpoenaed.
The commissioner has indicated that this issue may have many iterations, but it's still the same issue. The commissioner has said clearly that there are considerations going on, that no decision has yet been made. I think both the procedure and House affairs committee and this committee would have to determine whether, if there's a formal investigation going on, our dealing with this adds anything to the public interest and whether we would have sufficient resources to have people come before us who would be prepared to testify.
So let's be careful about proposing too many things here. I think we should be careful. Let's try to stick as close as possible to the annual report of the commission. That's the reason she is here today.
I will move on now. Madame Freeman, s'il vous plaît.
Thank you, Ms. Dawson, for appearing before us today to present your annual report.
I would like to obtain some additional information in the light of what my colleague said earlier. These days, unethical behaviour is an issue that is often raised, whether here or elsewhere. It is becoming an issue on a number of fronts. We should be concerned by people's behaviours, the image that we project and the actions that might lead to confusion.
Your title indicates that you are responsible for ethics, among other things. You refer to your role, which is set out in the act or the code.
First, I would like to know what exactly your role is. Second, what role do you wish to assume in terms of ethics? We are talking about issues, including those that were raised by my colleague. Ethics are becoming a major issue that we can no longer avoid. We will no longer be able to pretend not knowing who is in charge of what. We will have to be accountable to and forthright with our fellow citizens regarding our actions and the responsibilities of elected officials and public office holders. We will have to be accountable. Canadians are truly concerned about ethics.
I will continue by asking you what role you would like to play. What are the limits of your current mandate? We get the impression that you are the ethics commissioner in title only, but that you have no power. That is what I would like you to clarify for us today, if you will. Am I making myself clear?
Thank you very much, Commissioner, for appearing before us today, along with your staff members.
I'm new to this committee, so this is the first time I have heard you present. I must say, as you're going into your second year, I think that things have moved along fairly well.
I was glad to read your report. I know we are never there totally and we need to make sure we can keep evolving and have a process in place that allows us to do that. I think your report pointed out some very good things.
We've had a fair amount of discussion already this morning on the ethics portion of your comment that was in your report. I wanted to ask you briefly one further question on that.
You had reported that the title includes the word “ethics”, as we've discussed already this morning. But you then went on to say that you don't believe you have the mandate to address all ethical issues.
I know you've told us how you're free to comment on different things and determine what extent that goes to, but are there specific ethical issues that you do not believe you have a mandate to address that perhaps would be beneficial if you did?
I'd like to raise, in the context of this first round, this whole idea of dealing with the ethical matters. One thing hasn't been mentioned. Commissioner, maybe you could enlighten the committee on the force and effect of Accountable Government: A Guide for Ministers and Ministers of State, 2008, which is under the Privy Council Office. These are the guidelines for ministers and ministers of state, which include annexes G and H on...interesting things.
The letter from the describes this document by saying, “These measures complement the Conflict of Interest Act”--which is what you operate under in your mandate--“and establish the most rigorous conflict avoidance regime in Canada.”
If the Prime Minister believes that this guide for ministers, plus the Conflict of Interest Act, are the whole package, and you can't deal with some of the nuances in the Prime Minister's package, who would a member make a complaint to on an item that's under the guidelines instead of the act?
Starting with the second question first, on post-employment, I think my suggestion is that it would help if there were some kind of reporting requirement.
The problem with post-employment is the same as it is with the offers of employment that I was just talking about. For post-employment, they go out the door and that's the end of any reporting requirement. As with gifts or recusals, we have no way of knowing unless somebody comes to us deliberately. What we have done is put the post-employment requirements in our letter that we always write when somebody's leaving.
There's another thing we've done. When we do see an article in the papers suggesting that somebody's doing something they shouldn't be doing, we'll contact them and talk to them about it. Usually what they're doing doesn't come under our act, but it will trigger us to see whether it's related to something that is under our act.
With respect to strengthening the mandate, the word “ethics” is there. I don't think I would ever propose that it be defined in any particular way. The only way you'd strengthen the mandate, I think, would be to add additional specific provisions. It works both ways. The person has to know what it is they're responsible to do. I think whatever I did with respect to the broader ethical area would be to suggest, but not necessarily find or observe.
I don't know if that helps, but that would be my answer.
I don't know. It depends on who is asking, I guess. It's too broad a question for me, I think. But I think it's working. I feel that we're now working with it, it's now in place, and we're under control.
I mention all the time things that are difficult to enforce, as I was just discussing about the requirement to notify us within 30 days of certain activities. There's no way to know if somebody doesn't notify us of it, and the only remedy we have or the only recourse.... And actually we don't know; maybe everybody is telling us about their gifts. I don't know how many gifts are being received.
Each year we progress a little bit further on advancing our enforcement of the act, or our administration of the act. As I mentioned, this past year we've proactively gone out to a number of ministers' offices and said that every three weeks or whatever you must give us a report on any gifts you have received, which has expedited our finding out about them immensely, but now we might look at some other groups. I don't know what groups get gifts, but we're beginning to look at what types of people get gifts, and then perhaps we'll approach people who are the same as them. We're trying to find methods like that.
We're also trying to find opportunities to just tell people about it. As I mentioned, we're doing a session at the end of the week for MPs, and of course some MPs are ministers, so there is an overlap in the two instruments. We send our advisers out sometimes to see specific groups to tell them what their responsibilities are. We have information on the website. We'll increasingly have material on our information notice spots.
So education and a little bit of proactive searching is about all we can do.
I will just point out as well that I'm not a regular member of this committee.
Madam Dawson, thank you for being here today.
I want to focus for a few minutes on the divestment of controlled assets that you point out on page 14. In the first sentence you say that since taking office you've been concerned about the apparent over-breadth of the provisions in the act. You go on in the last part of that paragraph to indicate that this prohibition applies to all controlled assets held by a reporting public office-holder, whether personally, in a joint account with a family member, as a trustee for a beneficiary, or executor, and so on. Certainly, I have some concerns along with you there.
But then on page 16, in the second paragraph, you indicated that as of March 31, 2009, there were roughly 1,100 reporting public office-holders, and 119 had divested themselves of controlled assets through sales at arm’s length. Then in the very last sentence of that paragraph, you said that of the 95, only five involved assets that would have posed a risk of conflict of interest.
The next paragraph goes on to speak about another category, in which only four would have posed a potential conflict of interest.
So in total, that's only nine in all of these.
Then at the very end of that section of your report, page 18, in the last paragraph you indicate that you believe some consideration could be given to providing the commissioner with some discretion in setting compliance measures in appropriate cases. Obviously, based on your statistics here, I can't at first blush disagree with you. But would this not add an undue burden on your staff in terms of making these individual decisions on every individual case? Would it actually add to the subjectivity of the decisions that are being made, as opposed to having it clearly identified within the act?
Thank you, Mr. Albrecht.
Commissioner, on your website there's a link to a Federal Court of Appeal case with Democracy Watch, Barry Campbell and the Attorney General of Canada. It deals with the interpretation of rule 8 under the Lobbyists' Code of Conduct. It was a very significant decision because, previously, to say someone had undue influence over a public office-holder you had to prove that there was influence. The decision of the Federal Court of Appeal was that all you have to demonstrate is that there was an attempt to influence.
That is very significant. The Commissioner of Lobbying has advised me that rule 8, improper Influence, says: “Lobbyists shall not place public office-holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office-holder.” It has always been that you have to demonstrate that there was an influence. The Federal Court of Appeal decision is that there needs to be evidence only that there was an attempt to influence.
Now, because it's a Federal Court decision, have you adopted that lighter or less onerous burden, that to determine whether or not a public office-holder, under the Conflict of Interest Act...? It would have to be demonstrated only that the attempt was there, and that the public office-holder.... We don't know whether or not they were influenced, but it really doesn't matter. Is your office now adopting that Federal Court of Appeal ruling with regard to onus of proof?
Just for those who don't know, PROC is the short form for the procedure and House affairs committee.
But that's right, the procedure and House affairs committee does in fact deal with matters related to members of Parliament. This committee deals with public office-holders as defined.
Commissioner, this has been actually a very good meeting. We have in the past maybe not had an opportunity to really get into many of the areas that you have responsibility for. I can tell you personally that my biggest issue today, brought up by Pat Davidson, was the human resources issue.
For you to discharge your responsibilities, you have a full-time equivalent complement, which is budgeted for. However, like many of the commissioners, you are unable to source and train and have a full complement to be able to discharge the various responsibilities you have. Part of the problem, which you identified, is that we have people who are in fact moving around to other areas within the federal government or its agencies or its authorities, which means that we're just passing on the problem to somebody else. It just seems to rotate around.
I don't know how we get off this merry-go-round, but if you check the records, the Auditor General raised this several years ago. I think it's a problem that we have ignored, and I hope that you as the commissioner will look for opportunities to participate in whatever dialogue is necessary, whether it be through Treasury Board or whatever. We need to get off this merry-go-round. We need to have full complements of staff in our commissions, in our commissioners' offices, as well as in other departmental areas so that they can properly discharge their responsibilities, which are the responsibilities that we are providing to all Canadians.
So I hope you will do what you can as you consult with others who you know have similar responsibilities in terms of human resources, and that there will be a solution to this, because it has been years.
To you and your colleagues, thank you kindly for the excellent job. We certainly look forward to having you come back before us--for the estimates, at least, and I'm sure something else will come up. We thank you for accepting our invitation to be here, to present yourself to the committee, and to allow the committee to get to know you a little bit better.
You're excused now.
That said, I'd like to deal with that one issue that Mr. Siksay had raised about the guidelines for ministers and ministers of state and whether or not the committee would like to consider having someone from PCO or a delegate from the Prime Minister's Office to help the committee understand where they fit in the regime.
I'm going to go to Mr. Siksay first, and then I have Mr. Wrzesnewskyj, and then Mr. Poilievre.
Mr. Siksay, please.