ETHI Committee Meeting

     I call the meeting to order and extend to everyone here a very warm welcome. This meeting, colleagues, of the Standing Committee on Access to Information, Privacy and Ethics has been called pursuant to the Standing Orders. We're very pleased to have with us today Ms. Mary Dawson from the Office of the Conflict of Interest and Ethics Commissioner. She of course is the commissioner.

    She is accompanied by Lyne Robinson-Dalpé, the assistant commissioner, and Nancy Bélanger, general counsel. On behalf of all members of the committee, I want to welcome all three of you.

     I propose that this part of the meeting go until 5:15, and then we'll spend the last 15 minutes dealing with the minutes of the steering committee, which have been circulated.

     I'm going to start with you, Ms. Dawson. I understand you have some opening comments, so I will turn the floor over to you.

    Mr. Chair, I would like to begin by thanking the committee for inviting me to appear before you to talk about my 2009-2010 annual report under the Conflict of Interest Act.

     I am accompanied by Lyne Robinson-Dalpé and Nancy Bélanger.

    I am pleased to welcome your new members and look forward to working with all of you. I also appreciate the productive relationship that I have enjoyed with the committee during the past three years, as I have settled into my mandate.

    In my remarks today, I will highlight some of the activities covered in my annual report. They touch mainly on the areas of outreach and communications, investigations and some of the challenges I identified in the report. I will also identify some areas where my office has encountered challenges in applying the act.

     By way of background, the Conflict of Interest Act applies to the approximately 2,800 full- and part-time appointees of the Government of Canada. All are considered public office holders under the act, and they are subject to its general rules on avoiding conflict of interest.

    Full-time employees, numbering about 1,100, are also subject to the act's requirements relating to the disclosure and divestment of controlled assets. These reporting public office holders include ministers, parliamentary secretaries, ministerial staff, and senior government appointees.

    All reporting public office holders are required to make a full confidential disclosure of their assets within 60 days after taking office and to update it every year. Within 120 days after their appointment, reporting public office holders are required to sell any controlled assets they hold or put them into a blind trust. They must also make public declarations of certain other assets and any directorships or positions of office with outside organizations that are permitted under the act.

     In some cases public declarations are also made to reflect special compliance measures, such as conflict of interest screens--I will say a little bit more about these later. As well, there are ongoing disclosure requirements, within relatively short delays, relating to material changes, gifts and other advantages, the receipt and acceptance of firm offers of outside employment, and recusals.

    The act allows me to impose administrative monetary penalties of up to $500 for failure to comply with the reporting deadlines. In the last fiscal year, I imposed penalties in five cases. However, I noted in my annual report that the act does not provide for penalties for contraventions of substantive provisions of the act.

     Outreach and communications are important tools to assist us in helping public office holders to comply with the Conflict of Interest Act. In the past year we have continued to meet regularly with individual public office holders to explain their obligations under the act and address their questions and concerns.

     We have improved our compliance processes, resulting in significantly fewer missed deadlines. We have upgraded our electronic case management system to assist our advisers in giving public office holders more timely advice and guidance.

     There was an increase in the number of gift disclosures made by reporting public office holders in the past year, probably because of more proactive communications by my office. We explained their obligations to them relating to gifts, and we introduced new forms and administrative procedures to help those who regularly receive gifts. Other outreach activities included presentations to groups of reporting public office holders.

    As I noted in my annual report, my office has historically had little contact with non-reporting public office holders, most of whom are part-time members of federal boards, commissions, and tribunals, and some of whom are part-time ministerial staff. This is because they are not subject to the act’s reporting requirements, its divestiture requirements, or its prohibition against engaging in outside activities. As well, while they are subject to the gift rules, they do not have to disclose them.

     In the past, our practice has been to simply advise these mostly part-time public office holders of their obligations under the act when they assume their duties and at the end of their term of office, but not to initiate any other communication with them during their term. I undertook in my annual report to change this situation. As an initial step, I am in the process of sending the first in a series of annual letters to all non-reporting public office holders reminding them of their obligations under the act and inviting them to contact my office with any special concerns.

    The last year has been particularly busy on the investigations front. I reported on four examinations under the Conflict of Interest Act. Three of these had parallel inquiries under the Conflict of Interest Code for Members of the House of Commons.

     I also discontinued an examination of allegations of partisan advertising of government initiatives by the Prime Minister, certain ministers, and their parliamentary secretaries.

    In June of 2009, I reported on my examination in relation to allegations that Mr. Colin Watson, a member of the Toronto Port Authority board of directors, had furthered the private interests of a friend by participating in certain board decisions. I found that Mr. Watson was not a friend of the individual in question within the meaning of the act and concluded that he was not in a conflict of interest and did not contravene the act.

    In my three most recent examination reports, I commented on issues reflecting ethical considerations that were not addressed by the act.

    In April 2010 I reported on my examination of complaints that 25 ministers and parliamentary secretaries had used partisan or personal identifiers on ceremonial cheques or other props in connection with federal funding announcements. I found that enhancing political profiles is a partisan political interest and not a private interest within the meaning of the act. I concluded, however, that using partisan or personal identifiers in announcing government initiatives was inappropriate and that steps should be taken to address this practice.

    The focus of my other two examination reports related to fundraising and lobbying. In May 2010 I reported on my examination of the activities of the Honourable Lisa Raitt, when she was Minister of Natural Resources, in connection with a political fundraising event organized by her riding association. In September 2010 I issued a report on my examination of the involvement of Mr. Rick Dykstra, Parliamentary Secretary to the Minister of Citizenship and Immigration, in a political fundraising event organized for the benefit of his riding association.

    In both reports I noted that more stringent provisions relating to fundraising should be considered for ministers and parliamentary secretaries. In this connection, I noted that the act's predecessor, the Conflict of Interest and Post-Employment Code for Public Office Holders, prohibited ministers, parliamentary secretaries, and other full-time public office holders from personally soliciting funds, regardless of whether or not doing so would place them in a conflict of interest.

    I also made reference to the Prime Minister's guidance document setting out best practices to be followed by ministers and parliamentary secretaries in respect of fundraising activities. I understand from a recent media report that the document will soon be made public.

    I will conclude by drawing to your attention several areas where my office has encountered challenges in applying the act that were discussed in my annual report. One area involves the notion of material change. Reporting public office holders are required to inform my office of a material change to any of the information disclosed in their confidential report. They're supposed to do so within 30 days of a change occurring, but often we do not learn about them until the next annual review. A material change could affect an individual's obligations under the act, which is why it's important that these changes be reported without delay. As I've already mentioned, a failure to meet the reporting deadlines could result in an administrative monetary penalty.

    Material change is not defined in the act. In an effort to improve the reporting rate, I recently updated our website to add an information notice under the act describing my interpretation of what constitutes a material change.

    Under the act, public office holders must recuse themselves from discussion, decision, debate or voting on a matter where they would be in a conflict of interest. Recusals take place in relation to specific conflict situations that usually come up at relatively short notice.

    It makes sense to identify situations where recusals may become necessary as soon as a public office holder takes office and at that time set up a process to prevent conflict of interest situations from occurring. The act gives me the discretion to determine appropriate compliance measures, and under this authority I have followed the practice of setting up conflict of interest screens that anticipate possible conflicts, thereby avoiding the need for recusals in most cases. Conflict of interest screens are often referred to colloquially as “Chinese walls” and are a common practice in legal and business environments.

    Once a conflict of interest screen is in place, related matters such as the handling of files, meetings, and phone calls are redirected by the screen administrator, and these matters do not come to the attention of the public office holder.

    The act requires that all recusals by reporting public office holders be made public, but there's no similar requirement for conflict of interest screens.

     I do, however, have the authority to make any other documents public when I consider it appropriate to do so. For reasons of transparency, since late last year I have been making these conflict of interest screens public as a matter of course.

    I note that our public registry has contained no recusal declarations since the act came into force. This is primarily because we've been using the conflict of interest screens effectively. There may have been other recusals, but only one has been reported, and that one could not be made public because it contained a confidence of the Queen's Privy Council for Canada.

    The final area I want to mention involves the confidentiality of examinations. When I receive a request for an examination that's been made public but that does not meet the basic requirements for acceptance, I'm not permitted to give any public explanation of the reasons for not investigating. This leaves me open to accusations that I do not take the request for examination seriously or that I'm favouring an individual or party--allegations that could unjustly damage the reputation and hence the effectiveness of my office. The allegations can also unfairly damage the reputations of those complained against.

    Mr. Chair, this concludes my opening statement. I am grateful to the committee for taking the time to review my 2009-2010 Annual Report in respect of the Conflict of Interest Act and to examine the issues that I raised in it.

    I am happy to answer any questions you may have.

    Thank you very much, Ms. Dawson.

    We're now going to proceed with the first round, which is for seven minutes.

    Mr. Easter, you have seven minutes.

    Thank you, Mr. Chair.

    Welcome, Ms. Dawson and colleagues.

    I might say as well, as a member of Parliament, that we've sent a number of materials over to your office and we've always had pretty good cooperation.

    I guess one of the key current issues--and you're no doubt aware of the discussion that's been happening at this committee and others--is the appointment of the Prime Minister's new chief of staff, Nigel Wright. We and others have certainly expressed some concerns about the temporary leave of absence and the number of departments that he might have to recuse himself from.

    It's my understanding that you have given your approval regarding the arrangements that have been made with Mr. Wright, but I'm not sure if that's true for both sides of the equation. One side of the equation is the fact that Mr. Wright is on a temporary leave of absence from Onex and is therefore going to be here for just a little while. His obligations, clearly, over the long haul, are going to be to Onex. Were you aware of that arrangement he has with the Prime Minister? Do you have any comments to raise on that side of the coin?

    Yes, I'm aware, but I must say that we are still in the process of finalizing any arrangements with him. They have not been finalized.

    When do you expect them to be finalized? Do you have any timeframe? The government is pushing us, if we want to talk to Mr. Wright, to do so before November 8. We disagree with that, of course, because it's Parliament's right to call whoever it desires, with the exception of a few, whether they're exempt staff or not.

    In any event, do you have a timeframe for when you will have that completed?

    It's impossible to set an absolute deadline. I remind you that in fact he's not even in office yet. When somebody takes office, they have 60 days in which to give us information, and then there are another 60 days after that for the arrangements to be finalized. That's not to say we're not going to finalize the arrangements more quickly than that in this case. We've made a lot of progress. We've had lots of discussions, and we're doing well with our discussions. I could probably go on to say that we're probably not too far away, but until everything is dotted and crossed, we don't have the arrangements finalized.

     That, too, is one of our problems with the government's intransigence in not allowing exempt staff to come forward, because some of these things do not happen until after....

     But on the other side of the issue, as I outlined to committee the other day, there are nine or ten departments from which we believe Mr. Wright might have to recuse himself. Have you discussed at length how the chief of staff to the Prime Minister, the second most powerful position in the land, can do his job if he has to recuse himself from...? It's actually ten departments. You mentioned in your opening remarks Chinese walls. Is that the way you see this? I mean, will Chinese walls prevent conflict of interest? I understand the defence contract for aircraft hasn't even been signed yet. This man has connections throughout the defence industry. In fact, he is or was a director of one of the companies that is indirectly involved.

    I can't comment on individual cases, as you undoubtedly understand, but I can say, as I have, that we've had extensive conversations. We're well advanced in developing the screens, and once those screens are in place it's going to be up to the incumbent to ensure that he complies with them and that there are no conflicts.

    The screens are meant to assist the public office holder to avoid a conflict of interest, so we work with them to make those screens as complete as we can. Should there be something that falls through the cracks, then the person should resort to a recusal. But certainly we've done a lot of work on the matter and we're well advanced.

    You're obviously operating under the assumption that these screens will prevent the perception of conflict. We are dealing with 10 departments here. Maybe you'd better explain to me a little further how these so-called screens can prevent that.

    The other fact is that many public office holders, under the rules now, are not allowed to get into lobbying government in any substantive way for five years. This individual will only be here for 18 to 24 months. He's on a temporary leave of absence. No one can tell me that this man's obligation in the future is not to Onex. How do you get around that? How can the public actually believe there is not going to be a substantive conflict here?

    My obligation is to ensure that the requirements of the act are met. I believe we are meeting the obligations of the act by establishing these screens, or we're assisting the public office holder, Mr. Wright, to ensure that he does meet the obligations of the act. The other thing about those screens is that they will be made public when they're finalized.

    Thank you, Mr. Easter.

    Ms. Freeman, you have seven minutes.

    Thank you for being here, Ms. Dawson, Ms. Bélanger and Ms. Robinson-Dalpé.

    I wanted to ask you about the fact that you have the title of ethics commissioner, and yet the term “ethics” does not appear anywhere in the current act. You seem to be uncomfortable with that. Your help is frequently sought in a variety of situations, but your focus under the Conflict of Interest Act is more on matters of personal interest.

    The act is scheduled for review in July 2012, so what amendments should be made to strengthen the ethics component? Basically, you have a title, but nothing in the act deals with that part of your mandate. What amendments would you propose?

     It is an interesting question. If you'll pardon me, I'll respond in English.

    I've struggled with the fact that my title says “Conflict of Interest and Ethics” since I came into the job. I think I'm gradually getting used to the issue, and I'm dealing with it in the way that I think is appropriate.

     I talk about the fact that I'm primarily dealing with conflict of interest and that ethics is in my title but doesn't occur in the act. The reason why I refer to that from time to time is to try to make people understand what my true responsibility is under that act. But I've concluded that since ethics is sitting there in the title, why not make some observations when I feel like it.

    Basically, in my last few investigation reports, you will see that I find whether there's a contravention and then when appropriate I go on to make observations about whether I think some of the activities were appropriate or whether there are some additional changes that could be made, either through informal rules or changes to the act. That's the way I'm now coping with this term “ethics” in the title of my job.

    The other observation is that I don't think you can define ethics. An ethical scheme for one person is not the same as one for another person. It's a very loose concept, and I'm not sure that broad ethical considerations ought to be legislated.

     I hope that goes some way to answer your question.

    That partially answers my question.

    In the past year, people have brought various examples to our attention. When it came to fundraising, there were no grounds to file a complaint. But the more these situations arise, by not tightening things up, the message we are sending and the message that the commissioner's office is sending is that there are no restrictions whatsoever, because you are limited by the mandate set out in the act.

    What can we do to make the situation better? We cannot spell out every single ethics-related thing, but we should be able to impose much clearer parameters. Things are obscure the way they are now. You can make recommendations, but your mandate is very limited.

    With respect to fundraising, it's covered under the act but not under the code. There are prohibitions against fundraising, and it's very artificial to try to figure out whether somebody is fundraising as a minister, as a parliamentary secretary, or as a member of Parliament. One suggestion I made was that perhaps the rule should be extended to cover ministers, whether they're acting as a minister or a member of Parliament. That would be one approach.

    There are many ideas that one could put on the table as to just where one wants to go with the fundraising issue, but generally, these things come up as you notice them. As issues come before you, you then see where maybe some improvements could be made, and that's where I'm trying to make my small contribution when I see something that maybe could be improved.

    The other observation, though, is that one must be careful not to create too long a list of rules, so you kind of forget why you're doing it. There's a place for principles as well. So there's a balance there as to how detailed you get with these rules. The most important thing is to make people want to maintain the integrity and the reputation of parliamentarians or public office holders. The answer is not entirely in making stronger and stronger rules.

    You do not think stronger rules are necessary. You said you have to be very discreet in terms of the files you work on. The act prevents you from disclosing complaints. Could you elaborate a bit more on what that means with respect to restrictions?

     Yes. I'm a great fan of transparency, and whenever I can make things transparent, I will. I really take a lot of pains in trying to tell in my annual reports what I've been doing. Having said that, these are people's reputations that we're dealing with very often when there are complaints made about somebody. I think one has to balance privacy considerations against the need for transparency.

    The act and the code are somewhat different in the rules they have about the extent to which things are confidential. It's a little bit complicated to get into, but I can as necessary. Basically the rules are more stringent, for example, with respect to investigations under the code than they are under the act.

    I always keep in the back of my mind the need for respect of personal privacy when I'm making statements about what's going on. So there's a balance. It's not an easy balance, but both of them are very important.

    Thank you, Ms. Freeman.

    We're now going to move on to Mr. Siksay.

    Mr. Siksay, seven minutes.

    Thank you, Chair.

    Thank you for being here again, Commissioner Dawson, with your colleagues.

    Commissioner, I have just one story of the day that I want to make sure isn't really in your area of jurisdiction. I don't think it is, but I just want to confirm that. The Auditor General today reported on conflict of interest guidelines for public servants, for bureaucrats. Is there anything in that area that falls on your plate?

    Actually, I didn't see it before she made it public. I glanced at a half-page list of what was in it and it sure looked like it was all about the public service, but that's as much as I know.

    It's interesting that we're waiting on Treasury Board guidelines and still functioning with public service guidelines on conflict of interest from 2003 from the previous government.

    I wanted to ask you about the fundraising guidelines that you are waiting to read from the Prime Minister, because that's been part of a number of your investigations this year.

    You mention that you understand from recent media reports that the document will soon be made public. I know that's what you reported to the House procedures committee a couple of weeks ago. Have we seen that document yet or do we know anything more about when it might finally be made public?

    I haven't. Basically that document came into my possession and I just observed that in support of transparency principles, why not make it public? That was my comment. But no, I know no more than you do.

    Has there been a commitment from the Prime Minister's office to make it public at some point?

    I believe there was at some point, some time ago now.

    In both of your annual reports on the code and the act you talk about working with the House of Commons Standing Committee on Procedure and House Affairs on possible amendments to the code. It's my understanding that you work with that committee on the code but with this committee on the act. Am I correct about that reporting relationship or that working relationship, that division?

    I'm not sure which committee I work with on amendments to the act, to tell you the truth. It may well be this committee, but it could be an ad hoc one, I suppose, if I ever do. I don't know.

    But the reason why I work with the procedures committee on amendments to the code is because they have the power to propose amendments to the code and it's much easier to get amendments to a code than to an act.

    Right.

    The other reason why I work perhaps a little more closely with the procedures committee is because there are rules in the code that require that I can't make guidelines and things like that until they've gone through that committee.

    You talk about that there might be changes that are necessary--and I think you've mentioned a number of places--to the act. There's the legislative review that happens in 2012 that you mention in your annual report. Is that too long to wait? Are there things that need to be done before that?

     I mean you're bumping into--I think regularly--places where things aren't well defined or could be improved. You draw those to our attention, but are there things that you find urgent that need to be addressed before that legislative review?

    No, I don't think we're desperate. I think basically I've made my views known on a number of fronts. I find that the divestment provisions may be a bit broad, but I've made a number of.... But I can wait until they're considered.

    On a number of the issues I've taken particular positions, and if people don't like them, they can make the law a little more clear. As I say, I try to be as transparent as I can as to the positions I'm taking. But no, I'm not pushing for reform heavily on the act. It's not a bad thing; there are just a few rough edges.

     Towards your final paragraph you talk about your frustration with people's judgment of how you do your job and with some of the requirements you're up against in terms of reporting and the public explanations you are able to give or not give. When you were talking with Madam Freeman, you were talking about the balance between principle and rules. Is that one of those places where principles and rules come into conflict, or where more rules might be helpful? Do people expect you to be somebody who's enforcing rules, when in fact you have principles to enforce? It may not be as satisfying to get a judgment on a broad principle as it would be to get one on the breaking of a particular, very specific rule.

    No, I don't think that's the line I'm concerned about. There have just been a few frustrating circumstances when misinformation has been put out and I haven't had the capacity, the authority, to clarify the situation. I've tried to indicate that. You know, it's really a small share. I think, for example, that the investigation process ought to be done in confidence until the report is put out, but I think there's a little bit of room for maybe a little more discretion on what I could make public.

    Could you say something more about that? It's clearly a frustration and clearly one that, as you know, reflects on how people view the commissioner's office. I wonder if you could say a bit more about how you think that could be clarified.

    One thing that I find really not nice is people who tell the media they've sent me a complaint, and it hasn't arrived at my office and the person complained about doesn't know. I think that's completely unfair. It's that sort of situation. The only person who knows what they're talking about is the person who is talking to the media.

    How would we fix that? Would there be a requirement to notify the party you're complaining about and to not make a public statement--

    Yes.

    --until it has been received in the office? How would we structure that?

    I think you could probably structure an amendment quite easily that would make that an offence or something.

    You've talked in a number of places about the problems of the code and the act and that sometimes both apply, depending on the nature of the position the individual holds. You've talked about trying to harmonize the reports and making an accommodation with that. Are there other ways to harmonize those two that make sense, or are we going to be stuck with that dilemma?

    I was asked about this at the procedures committee. Maybe it was by you.

    I don't think we'll ever see the code and the act being the same document, frankly, but there are lots of models one could follow. One could have a portion of one act that applies to members and other portions that apply to different people, but I'm not too concerned about that. My technical problem is really that I keep having to do two reports on virtually the same issue. So I'm not pushing for the same vehicle.

    Thank you very much, Mr. Siksay.

    Mr. Poilievre, you have seven minutes.

    Thank you.

    Paragraphs 3(d) and (e) of the act, under “Purpose of the Act”, read as follows:

    Some of the nature of the questioning on Mr. Wright's imminent arrival in the role of chief of staff to the Prime Minister would almost seem to suggest that some don't want to experience the interchange between the private and public sector and that successful private sector Canadians should, by that same flawed logic, be excluded by the rules.

    Could you comment on the spirit of the act with respect to inviting experienced and successful private sector Canadians to play a role in the political process?

    I commented myself, I think, in the first year I was in office that paragraphs 3(d) and (e), which talk about encouraging experienced and competent persons, is to be noticed. There is a balance to be struck. The observation I would make is that there's nothing else, pretty well, on the face of this entire act that supports those two principles. That isn't to say that they're not important principles. It's kind of in that context that I've made comments in the past, questioning whether our divestment provisions are too stringent, and that sort of thing. But I have taken note of paragraphs 3(d) and (e), and I agree that it's right there on the face of the act, and it's one of the balancing considerations when one appoints people to be public office holders.

     So you believe that the Conflict of Interest Act divestment provisions may be too stringent.

    Yes. There is no conflict of interest test for the holdings; it's certain types of holdings that have to be divested. Of course, it's ultimately at the expense of the public purse. People have the right to have a trustee who can divest either by selling or by putting it into trust, and when they put it into trust, the public purse pays for that. I'm not sure it's always necessary to do that.

    Anyway, that's an example of where you get a signal from the act that maybe they're not so encouraging towards outside people.

    Okay. That concludes my questioning, but I'd like to defer any time I have to Ms. Davidson.

    Four minutes.

     Thanks very much, Mr. Chair.

    Commissioner, thanks again for being with us. Certainly it's always a pleasure to hear you and to have you present your report.

    I want to go back to a couple of things you referred to in your opening remarks. The one statement that really caught my attention was where you were talking about imposing penalties in five cases. However, you noted that the act does not provide for penalties for contraventions as substantive provisions of the act.

    Could you elaborate a bit more on that, and could you please tell me what, if anything, you think needs to be changed?

     I'm not sure whether there should be a change or not, but it's quite odd that the only thing there's a penalty for in the act is for a failure to meet a deadline. There's not a penalty for being a director in something you shouldn't have been a director in after you become a public office holder, for example. The only sanction we could impose in that situation would be if there were a failure to tell us they were a director. It's not exactly the sort of thing you'd normally do an investigation on; it's a technical requirement.

    There's a middle area of contraventions that are not clearly covered by the act. It's a bit odd that the only thing I can impose a penalty on is what one might see as the most minimal of contraventions, which is a failure to meet a time delay.

    That's my comment: with that substantive failure to comply, it's simply not appropriate to take the time and expense to have an investigation when it's obvious it's an infraction. Of course, even with an investigation I can report and recommend, if I want. But the only sanctions that exist on the face of the act are these penalties for failure to meet deadlines. It's a bit unusual.

    On the other hand, you could argue that it's not the place of a conflict act or code to be focusing on penalties; it's more about setting the rules that people should be meeting. I'm not necessarily advocating massive fines. I'm saying it's a bit odd.

    Now you also talk about communication with part-time public office holders and how historically you've had little contact with them. But I believe you are stepping up some of that communication.

     Could you tell me a bit more about the part-time public office holder? They're not subject to any of the reporting requirements. Is that correct?

    That's correct.

    Tell me the difference between the non-reporting and the reporting.

    It's a bit complicated, but quite clearly a part-time person doesn't have to report and a full-time person does. There are some general provisions that apply to both sets of people--the general rules of conflict--but any of the rules around disclosures or divestments don't apply to part-time people.

    One area where I wondered whether people were complying with the act is with the receipt of gifts, for example. I don't have a regular connection with part-time public office holders, and I thought if I at least sent an annual letter reminding them of their responsibilities, maybe they would remember. I have no way of knowing. Maybe they're all complying, but I have no idea.

     Pat, your time is up. Thank you very much, Ms. Davidson.

    That concludes the first round.

    I just want to clarify a point that Ms. Davidson raised, and I want to get this straight so that we're very clear, because I'm confused. You do an investigation, and if it's against a member of Parliament, your investigation is concluded and tabled with the Speaker of the House and then the Speaker can refer it to the Standing Committee on Procedure and House Affairs and do with it as the House may choose. Your only penalty or adjudication function, if there is a failure to file, is that then you can levy fines. Correct?

    Under the code or the act?

    The act. No, the code.

    There are no penalties under the code.

    I'm sorry, I get them mixed up with the act.

    The MPs' code is a lot easier, in most cases, than the public officer holders'.

    What happens if your investigation is against a public office holder who is not a member of Parliament and you find there has been a violation? What happens then?

    Do you mean just a simple violation?

    No, let's assume it's a serious violation. What happens?

    Well, if they're seriously in some kind of a conflict of interest, then I would probably go into an investigation and make a report, ultimately, and it would be sent to the Prime Minister and made public. There's a different process with the reports following an investigation under the act or the code.

    So in the investigation, if you find there's something wrong with an MP, it goes to the Speaker, and if it's a public office holder who is not an MP, it goes to the Prime Minister. But is it made public?

    Yes, and it also goes, of course, to the person complained against and the person who made the complaint just before it's made public.

    Okay. Thank you very much.

    Madame Bélanger.

    It only goes to the Speaker if the investigation was done under the code. If it's an MP under the act, it would still go to the Prime Minister.

    That would be as a minister--

    Because he's a public office holder, as a minister.

    Okay. We're now going to start the second round, five minutes, and we're going to start with Ms. Bennett.

    Ms. Bennett.

    You said in your last paragraph or so that you are concerned with the criticisms that have been laid against the office, and yet it seems that throughout your testimony you can only apply the law or you can only apply the code. Without a law reform commissioner, without having knowledgeable people look at these things, is it possible for you to prepare a submission as to what would be a law or a code that you could actually enforce?

     I think people are concerned that since 2008, of the eight studies that you undertook, in each case it was that the complaints weren't founded, but I think people just didn't quite understand. Is that because the act doesn't have enough teeth?

    I know even the Auditor General can only enforce the rules as they're written. She doesn't get to rewrite the rules to say it would have been better if the rules had been this way because it still stinks. How do you suggest as a committee that we go forward such that you had better legislation to enforce?

    Well, I'm nervous about getting too draconian a piece of legislation, because I think the more important thing is to instill the values in people that they follow.

    Yes. I have done about eight investigations, and it's true that there was only one that I found a contravention. I found distaste in a couple of others, but not an official contravention.

    The bright side to look on is that maybe people are obeying the rules. All I can say is that I honestly looked at the various proposals, and within the four letters of the act or the code there was not a contravention. But the fact that I looked into it and exposed exactly what happened is not a worthless exercise. Each time I do a report it hones what those requirements are to some extent.

    I don't know what else to say. I probably could go back to my office and think of a few, but I haven't gone through the exercise of--

     But without being draconian, you're saying that you only can levy a penalty if somebody is late. If they actually lied or omitted information, you have no recourse. I mean, the mobilization of shame sometimes works in these things, as sunlight is the greatest disinfectant, but you're actually not even able to do that, because it's not in the law or the code that if people don't tell you the truth, you can actually do anything.

    Yes. I have to say this is a voluntary scheme. The whole principle is that it's voluntary. I have to rely on what I'm told. It's only when something that I've not been told comes to light that there's a problem.

    I'm just thinking out loud at the moment, and I haven't given a huge amount of thought to proposing amendments at this point, except where I mention them from time to time in my reports. I think there might be room for some penalties for some of the substantive infractions, like being a director when you're not supposed to be one; holding some properties you're not supposed to hold; having outside activities when you're not supposed to have outside activities. None of those things have penalties attached to them. In a sense, they're not instructive enough or big enough to justify a full-fledged investigation, because there's nothing to investigate—they're a fact.

    So there may be room for some penalties for infractions, as opposed to just for delays. I haven't thought a scheme through, but there are probably six, eight, or ten instances where you could identify them and say, okay, there should be a penalty if you do this.

    Now, I don't impose a penalty every time somebody doesn't meet a deadline, because I would be imposing.... First of all, there's often a good reason they can't meet a deadline, and there's discretion as to whether I impose a penalty. But certainly, I virtually always impose a penalty if there's also some substantive infraction that went along with the failure to disclose. That's one of my guidelines as to when it's appropriate to impose a penalty.

    But it is weird that there's no penalty for a substantive infraction—a simple, straightforward one. It's like a traffic fine.

    Thank you very much, Ms. Bennett.

    Mr. Albrecht, for five minutes.

    Thank you, Mr. Chair.

    Thank you, Commissioner, for being here today.

    You commented earlier that you're often reporting to the Standing Committee on Procedure and House affairs. I have the privilege of serving on that committee.

    I recall a couple of weeks ago that you commented about this matter of having people from the private sector come to serve in the public sector. At that point you were very clear in pointing out the value of having these kinds of people serve here, and I think Canadians are generally very grateful that someone of Mr. Wright's calibre and credentials would offer to serve Canada in this way. Of course, we need to be sure that the guidelines and rules are followed, but I do believe, as you indicated, that we could actually be overly zealous in our efforts to follow the rules and actually discourage people like Mr. Wright from coming to serve here.

    I'm glad you're here. Your comments were that we're doing well with the discussions in setting up the screens and that you're finding good cooperation from Mr. Wright. I think Canadians are happy about that.

    I just want to refer to your remarks this afternoon. At the top of page 3 of your prepared remarks in English, under the heading, “Investigations”, you go on to use the term “examinations” at least eight times on that page and you never come back to the word “investigation”. Are we using those terms interchangeably or is there a major difference between your use of the words “investigation” and “examination”? Could you discuss that?

    Yes, I always have to stop to think of which word I'm using here. Basically the point is that under the act, if you carry out an investigation, it's called an examination. Under the code, if you carry out an investigation, it's called an inquiry. So when I use the term “investigations”, I'm usually trying to cover both of them.

    Okay. That's helpful. Thank you.

    Then later, on page 3, you refer to reporting possibly “more stringent provisions related to fundraising” for ministers and parliamentary secretaries, and then you commented that it's difficult to determine whether they're acting as a minister or a parliamentary secretary. Yet you're going to try to define that difference. I'm just wondering, how could you possibly do that?

     I was actually making the suggestion that once you're a minister or a parliamentary secretary, whether you're acting as a minister or an MP, maybe the same fundraising rules ought to apply because it's a bit artificial to figure out which hat you're wearing.

    Exactly. I simply wanted you to clarify that.

    Yes.

    I appreciate you doing that.

    Later on the same page you talk about “material change is not defined in the act”, yet in an effort to clarify that, you describe on the website.... I must confess, I don't surf the website of the commissioner of ethics very often, so could you explain to us how you have defined or described your interpretation of what material change is?

    My associate has handed me my website page here. Do you want me to read you the one paragraph perhaps that sort of pulls it out?

    Sure.

    It says:

    Then I go on to say you should pay particular attention to this, that, and the other thing, and I make a big list there. Basically, I guess my message is that there are some things that are obviously material changes. Aside from that, it's not always so obvious, so the bottom line of the message is to consult us if you're not sure.

    It seems to be clear that there will still be quite a large degree of discretion on the part of the commissioner and those working in your office to work with the person who is asking the question, and as you pointed out, hopefully they would ask prior to rather than following the demand.

    Thank you.

    Yes.

    Thank you very much, Mr. Albrecht.

    Madame Thi Lac, five minutes.

    Thank you, Mr. Chair.

    Madam Commissioner, the penalties set out in the act are imposed only for failure to meet reporting deadlines, not for involvement in activities that are in violation of the act. Does that not prevent the process from being an effective deterrent?

    I agree. The focus seems to be on the wrong thing, although it's good to get your stuff in on time, too.

    You said earlier that you rely on the information you collect. You do not necessarily do any investigations or examinations, but you rely on the information that people are willing to give you.

    Is it a lack of funds that prevents you from doing more investigations or examinations, or is it a lack of staff?

    No, I would do an investigation if I had reason to believe.... Normally, an investigation is triggered by the request of an MP. As soon as I get a complaint, I will look into it carefully and decide whether to proceed with it on the basis of whether reasonable grounds have been provided and a sufficiently explicit explanation as to what the offence is alleged to have been.

     I also have the option on my own to self-initiate an investigation. I've done that a couple of times, and that's if something comes to my attention, not from an MP.

    I will rephrase the question.

    You said that you do conduct investigations and examinations. In the course of those investigations, however, you collected only the information that people were willing to give you, and you relied on the fact that the people disclosing the information were acting in good faith.

    I didn't realize you were talking about when we were actually conducting the investigation. When we're conducting the investigation, we do a very thorough job. We interview a number of different people. We compare the different stories. We do a regular investigation job. In the final analysis, as in a court or anywhere else, you have to ultimately weigh what you've been told by everybody and try to find the truth.

    Since the beginning of your mandate, in early 2008, you have conducted eight investigations further to specific complaints, but you determined that none of the complaints was founded. Is that correct?

     No. There was one case early where I found there was a contravention. In fact, the House of Commons saw fit to change the rule, so in the future that particular activity will not be a contravention.

    Basically it is correct. Within the terms of the act or the code and the other investigation I've done, I have not found a contravention. But in the course of doing those investigations, I think I've clarified the rules significantly. I've identified where there may need to be some amendments.

     I have had some results. For example, people are no longer putting one party's logo on the cheques. Guidelines have been developed for fundraising. A number of results have come out of those investigations. But the fact of the matter is that I have not found that the individual has contravened the letter of the code or the act.

    You said that in one of those eight cases, the law or the rules were changed so the activity in question would not be a contravention. You said that in cases where the contravention was flagrant, a penalty could be imposed, but not by you.

    What would be an appropriate penalty, in your view? What kind of penalty could you impose? What would you recommend as far as penalties go?

    I haven't considered that question in detail to make a submission. Perhaps if there were a failure to comply with section 15--the activities that a public office holder is not supposed to do--it would be appropriate to have a penalty.

    On the receipt of gifts they should not have received, perhaps there should be a penalty there. I could probably list eight or ten with no trouble at all that would make more sense than a failure to meet a deadline. That isn't to say there shouldn't still be a penalty for failure to meet a deadline; I'm just saying there seems to be a gap there. It's not something where the subject matter lends itself to an investigation, because it's a black-and-white case. It's like running a red light. They just did something they shouldn't have done, and there's no investigation necessary.

    Madam Thi Lac, merci.

    Ms. Davidson, you have five minutes.

    Thank you very much.

    I just want to go back, Commissioner, to the full-time and part-time people and the public office holders. On page 1 you say:

    When we go to the next page and you talk about part-time public office holders, you say:

    I'm having a bit of difficulty differentiating who we're talking about. Could you help me?

    It took me about a week to get used to the reporting public office holder and the public office holder designations. It's too bad there wasn't a distinct and different title for each of these people.

    Everybody under the act is a public office holder, but a certain group of them are singled out and the only designation for them is reporting public office holders. The big difference is that they have to report a whole bunch of stuff. That's the best I can do there.

    So the reporting ones are--

    They're a class of public office holders.

    And who are they?

    They could be deputy ministers, ministers, parliamentary secretaries, ministerial staff who work more than 15 hours a week, ministerial advisors--which is a bit of a problematic area. The big one is Governor in Council appointees. I won't go into all the details there. So they're full-time board members. Then, of course, there's the big group of ministerial staff.

     So GIC appointees are under the ones who have to report.

    If they're full-time, but see, there are an awful lot of these people on boards who are only part-time.

    And by “full-time”, what do you mean by that?

    It isn't defined exactly, but it's how they're paid. If they're paid on an annual basis, they become full-time, except—

    And if they're not paid?

    If they're not paid at all?

    If they're a Governor in Council appointment who sit on a board and they do not receive a per diem or payment.

    If it's just a per diem, they're part-time because they're...part-time.

    Well, yes, they attend the board meetings twice a month or something.

    Yes, so those people will all be part-time. They wouldn't be under the rules.

    So they're the non-reporting ones?

    The reporting rules, yes, the more stringent set of rules.

    The general rules in the act that apply to everybody would still apply to them, such as you can't use your position to further somebody else's gain or whatever.

    You know, for some reason it's quite straightforward, but it's kind of hard to grasp. I accept that. It's the terminology or something.

    Okay, thank you.

    I still have a little bit of time?

    Yes, one and a half minutes.

    Okay.

    I just want to have you speak a little bit more on the confidentiality of examinations. You've expressed a concern here about unfairly damaging reputations, etc. How can this be avoided? How can we change that? I think it's something we all wrestle with. It's not the intent to damage reputations with nothing to back you up. I mean, we need to have the evidence.

    I've made some proposals to the procedures committee with respect to the code. It's a similar problem under the code and the act. Acts are something that are infrequently amended and they have their own procedures, but as I said earlier, it's easier to present proposals to the procedures committee for changes. I have a number of proposals there that could probably be transposed into the act as well, and basically the proposal would be just to make it a contravention if somebody spoke without first telling the commissioner and the person who was complained against that there was a complaint.

    A monetary penalty or...?

    Yes, probably. It's the same problem we have with all the contraventions. There's no scheme right now in the act for that. But if it was identified as a contravention, that's a first step.

    Thank you very much.

    Thank you, Ms. Davidson.

    Mr. Siksay.

    Thank you, Chair.

    Commissioner, this is probably going over old ground and you've probably been asked these questions here before, because sometimes reports are issued before annual reports and when you come we ask those questions, and...anyway. But I wanted to go back to some of the reports you made and some of the findings you had.

    In the Watson report you talked about how the definition of “friend” was crucial in your determination in that. Even though in this situation people had been representing themselves as friends or pals, you found that they weren't friends or pals.

    Can you just say something about your determination in that case and how you came to that conclusion?

    Yes. I mean, that was a bit of an odd case. The question is, what constitutes a “friend”? I've forgotten the terminology now. It's been a while since I've thought about that case.

    Nancy, would you like to take that one?

    If I understand the question correctly, it is what is the definition of “friend”?

    Yes. Somebody represents themselves as a friend publicly, yet in the report it was found that this wasn't a friend for the purposes of the act.

    It was an interesting case because it was people who worked together. The commissioner made reference to the fact that people often refer to each other as friends, but when in fact you look at the type of people the act was meant to cover for friends, in relation to the act, because it was right next to the term “relative”, it had to mean someone with whom you had close proximity. Therefore, in this particular case, the commissioner found that they were not friends.

    If you give me two minutes, I could probably find the actual words the commissioner used to....

     Is it “a close bond of friendship, a feeling of affection or a special kinship with the public office holder”?

    That's right. We tried to come up with a bit of a description as to what is not to be covered.

    The weird thing about that particular case was that the person who was accused of having contravened the act actually referred to this individual as a friend. I came to the conclusion that that was just a common method that he.... He called everybody his friend, like “my friend”, so that's where it got kind of mixed up.

    We concluded, from all the investigation we did, that he was simply not what you would call, as in the expression we used, a close, intimate friend.

    So that's another place where “friend” wasn't defined in the act, and you had to make some determination based on where it was placed and what you understood the intent of that passage to be.

    Yes

    Similarly, in the case about discontinuance of government initiatives, you said that:

    Can you just say something more about that decision?

    Yes. That was the one discontinuance that we did. That was simply because had we realized, when we got the complaint, that in fact the Conservative Party was not a person, we probably would not have proceeded at all. But we realized after we'd launched the investigation, when we kind of looked at it—because I think some of the other parties are corporate entities. So it was just an odd circumstance.

    But technically, it simply was not covered by the terminology of the legislation. And the thing was, when you compare it to other similar provisions elsewhere in the code or the act, they used words like “entity” or something, which would have covered them, but the provision we were trying to interpret said “person”. So I thought, well, if the act says what it says, the one thing I don't do is interpret something on which the act is very clear.

    So even though in the case of a “friend” you had to come up with a definition, you didn't feel that was possible in this circumstance.

    No, because it was defined. “Person” is a defined term. It's an individual or an incorporated body. Yes, the interpretation in the act applies. There was an interpretation of that phrase.

    Okay.

    Can you just say something on the difference between a partisan political interest and a private interest?

    Well, what I can say is that I don't think in the way private interest is defined in the code or used in the act, as now drafted, it was intended to cover.... There is no indication on the face of either of those vehicles that it was intended to cover political activities. My comment was that if members or the House of Commons want them to cover political activities, they can darn well say so directly. It doesn't say that now.

    Thank you.

    Thank you, Mr. Chair.

    Thank you very much.

    Mr. Easter, for five minutes.

    Thank you, Mr. Chair.

    I want to come back to the conflict of interest screens, because to be quite honest, I don't quite understand them. One of your favoured fans, Duff Conacher, in a press release on October 15, representing Democracy Watch, had this to say:

    Now, as I understand it, in your discussions thus far with the chief of staff to the Prime Minister, and kind of what's related to this committee, that individual will be using the conflict of interest screens. That's Democracy Watch's criticism of them.

    Can you explain to this committee how they operate in such a way as to refute Mr. Conacher's argument and to clear up the fog for us?

     The very first thing to say is that they are now being made public. I've been making those conflict of interest screens public for the last year, so it is not correct to say that they are secret and not public. All of the conflict of interest screens we've established over the last year have been made public.

    They were not being made public as a matter of course before that, and there is a historical reason for that, actually, and it might be helpful for you to understand that. In the previous regime, before I became Conflict of Interest and Ethics Commissioner, there was a code. In that code, recusal was defined as either a recusal or a conflict of interest screen. There was actually a vehicle that was used before this act was put into force. When this act was enacted, they dropped out the concept of conflict of interest screens. It took me a little while, having come into office, to notice, and one day I asked my staff why there were no recusals in our reports. I found out, to my surprise, that indeed what we're now doing had continued, so I said that we had better start making these conflict of interest screens public. They weren't required to be made public, but I have discretion to make public whatever I think ought to be made public.

    The whole confusion has come out of the fact that the legislation, the act, changed the terminology and the approach. A lot of people seem to think recusals are anything, but if you look up the legal definition, recusals are things you do at the last minute. You find out that you shouldn't be doing something. A conflict screen is another approach to the same problem.

    Anyway, I'm wandering a little bit, but maybe this will help situate you a little bit as to just what happened here. A recusal and a conflict of interest screen are two ways of accomplishing exactly the same thing. One is used when you foresee there is likely to be a problem that's going to come up in the future. The other one is used when you didn't foresee the problem and you have to recuse.

    Let me approach it this way. As I've said in earlier remarks, Hawker Beechcraft, of which Mr. Wright has been a director, is a company that is in direct connection with the $16 billion purchase--or the $9 billion purchase and then maintenance contract--of stealth aircraft. When this issue comes before cabinet, does Mr. Wright have to recuse himself or screen himself out of the whole discussion? How does this work?

    To my mind, there are 10 departments in which this individual will have a tough time not being perceived as being in a conflict of interest, so how do you make the decision? If we're talking about defence or maybe Afghanistan, he can be at the cabinet meeting or advise the Prime Minister, but if we're talking about a defence contract on stealth aircraft or some other thing that Hawker Beechcraft or Onex is connected to, how do you make that decision? Explain to me how this works in practicality.

    Wayne, your time is up.

    I can't discuss an individual's private case, but the bottom line is whether or not there is a conflict in this situation. The conflict of interest screen, which you will ultimately see posted publicly, will try to describe those situations that Mr. Wright will have to not take part in. I don't think I can say an awful lot more than that.

    Normally the screens establish an administrator, and in practice, the way they work is that whenever something is coming up the line toward somebody who they would normally deal with and it's one of those kinds of things they're not supposed to be involved in, an intermediary stops it and deals with it themselves. If that is what you're looking for, that is practically--

    Is the PMO going to have to hire extra staff to administer these screens?

    No, Wayne, you're out of time. I'm sorry.

    He is out of time. He knew that, I think.

    Mr. Calandra, go ahead for five minutes.

    Thank you, Mr. Chair.

    Thank you, Commissioner.

    I was on the Standing Committee on Procedure and House Affairs, and it's been to my great disappointment that I haven't had the opportunity to hear from you more often since they've removed me from there.

    I'll try to follow up on Mr. Easter. His confusion has led to some confusion for me.

    Let's just say, for example, that you're a prime minister, you own a shipping company, and that shipping company is registered in another country and carries natural resources. Does the prime minister then recuse himself from international relations, like the Commonwealth or the Francophonie or whatever, from the country that his ships are registered in? When the ship is carrying natural resources, does he then recuse himself from a natural resource discussion? If somebody gets sick on the ship, does he recuse himself from health care? If there's an immigration matter when the ship crosses into Canadian waters, does he then recuse himself from immigration matters? If there's somebody who breaks the law, does he have to recuse himself from public safety? We could go pretty much on and on, far more than 10 departments.

    Following up on Mr. Easter's confusion on how that worked, I wonder how, in the past, it would work for the number one politician in the country? Up until a year ago we didn't do the public screening, as you're saying. How is it possible that this country can ever be governed by anybody if we're following such strict rules that would basically make it impossible for anybody to do their job, because, following the confusion across, we just wouldn't trust anybody to do their job for the benefit of the country?

    Not everybody has wide interests, to begin with, so there are lots of people who can do their job. But that's what we're trying to solve. When we're dealing with screens, we're trying to set up systems whereby these conflicts will not arise.

    If you have an interest in a specific entity, it doesn't mean that you can never have an interest in anything that's at all remotely related to it.

    I don't really quite know how to answer your question.

    Basically what we're then saying is that we can accept that there are talented individuals out there who can actually, with some guidance from your office and in the best interests of the country, separate their responsibilities and their duties to the country from what they were doing in a previous life. Clearly, we've had a prime minister and public officer holders in the past who have done that quite successfully and have never, before they even took office, had to endure a public display such as perhaps we're seeing right now.

    Yes. The rules have changed in the last 10 years. That's one observation to make. They've become more direct. The other thing is that the more holdings and the more involvement one has before one comes into the job, the more complex it's going to be to establish the screens or to establish the procedures around them, but nothing is impossible. That's what there is and you take your chances. Maybe there are a number of things that an individual won't be able to be involved in. That's a choice that has to be made as to whether that individual is still wanted.

     In the instances where members of Parliament make complaints about other members of Parliament--and you see these instances of massive amounts of complaints that are just done for the sake of, I would suggest, and you probably wouldn't agree with me, partisan political advantage, where a complaint is duplicated 20, 30, 40, 50 times and is not completed properly...how do we stop that type of misuse of your office before it happens?

    Ultimately, then, you have individuals who truly don't care about the reputation of the institutions or your office or other members of Parliament. What they want to do, I would suggest, and you can disagree with me, is score some cheap political points, and they don't care what the end result is because for a brief time they can say somebody was under investigation, when the actual submission is of zero benefit and provides nothing. There are a lot of doorknobs out there who will do things like this.

     I was wondering if you have any suggestions as to how we can stop that type of misuse of your office in the future. Is there a potential for us--when a member complains about another member, not only does it get sealed until it's resolved, but nobody goes to the media; the person who has made the complaint and the person whom the complaint is made against know it. You do your investigation, and then when it's concluded it's made public. So we can stop this type of misuse of your office in the future.

    Mr. Calandra.

    Sorry, I didn't mean to go that long.

    There's a distinction between the substance of a complaint and the way it's brought to our office. It's pretty obvious which complaint you're talking about. I observed it wasn't brought to our office in the best way, but the fact of the matter was there was some substance to that complaint. We didn't find ultimately that the act had been contravened, but I certainly made some strong statements about the behaviour that was complained about.

    I think they're two separate questions, and I hope the office will be respected, and I'm sure the office was respected even in that case. It was just an odd way of going about things.

    Thank you, Mr. Calandra.

    Ms. Bennett, five minutes.

    Thanks very much.

    I was in cabinet with both Belinda Stronach and Paul Martin, and it seemed they had to leave the room for certain subjects. It seemed to be pretty straightforward, and it was under a recusal.

     I guess I too am having trouble with what a screen would be for an adviser to the Prime Minister, in that it's not as obvious that this person has left the meeting and that this had been reported. In the interest of making conflict of interest screens public, I guess I'm still having trouble struggling about all the meetings in the PMO that would include the adviser to the Prime Minister in many areas. As my colleague pointed out, how will you know if the screens being applied...?

    I don't think we're being facetious to say, with this breadth of interest in this new chief of staff, will there be somebody needed in the office to be able to tell the individual he can be in this meeting and not in this one? It does seem pretty difficult to administer when the interests of Onex are that broad.

    First, just to correct something at the front end, those were not recusals of the previous people you referred to. They were conflict of interest screens. There's just a very--

    Oh, I see. So if they were sitting in the meeting until the decision was taken, and then they would recuse themselves from the--

     No. As I tried to explain before, the definition of recusal, under the old regime that they were under, included conflict of interest. It was just kind of a definition thing, but the technique that was used was conflict of interest, not recusal. Recusal is a last-minute absenting yourself from the room. I wanted to correct that because there's just a persistent misunderstanding of the difference between those two. People think that conflict of interest screens are something new. That's been the process for years.

    Now, on to your question. I think one can only assume that these individuals have a certain level of integrity and that they want to comply with the legislation. We don't start off with the assumption that they're trying to avoid complying with the legislation. And do you know what? The only thing I can say is that in any case, where somebody's not complying with the act, one hopes that the truth will out, that sooner or later one will find out it's not being complied with. You can't do too much in secret anymore these days. One has to rely, to some extent, on the integrity of the individuals, but making it very clear as to what their obligations are. And yes, these conflict screens do require the imposition of another individual to intercede and stop stuff from getting to the person who has the screen.

     I don't know that I can say much else. The more things you have to watch out for, the more complex it becomes.

    I guess one of the issues is around training and the training of staff, the training of members of Parliament, the training of new staff in a minister's office, in a prime minister's office. Do you feel there's enough training to help make these kinds of decisions? Reading a booklet sometimes isn't quite the same scenario. Do you think you should have the ability to do training?

    Yes, we speak to a variety of different groups quite frequently, but the bottom line that we give people all the time is, when you're not sure, call our office and discuss it with us. We get an awful lot of calls for advice; our biggest job is the advice we give. We get a number of calls each day looking for advice.

    Thank you very much, Ms. Bennett.

    We're now going to move to Mr. Albrecht. No questions?

    No.

    Okay. We're going to move now to Madame Thi Lac.

    Madame Thi Lac.

    I have just one question for Ms. Dawson.

    A bit earlier, you talked about your role in terms of training. You concluded by saying that a number of people had contacted you for information on the services you provide.

    At the moment, you do not have to give a reason when you decide not to investigate a case. Would it not be possible to balance being transparent with protecting an individual's privacy by making certain information public without compromising privacy? You could turn these kinds of situations into test cases. I believe that the people calling to ask questions are acting in good faith. I think it would be possible to prevent certain problem cases. People may not necessarily know they are in violation of the code. Having examples of cases could be helpful.

     I think there are several issues here mixed up in what you're asking.

    When I was talking about people phoning for advice, it doesn't relate to the investigations; it relates to their requirements under the act. That's the first thing.

    I agree with you that perhaps there could be a bit more care or a few more provisions around what people can do when they make complaints, and allowing for some way to answer. The best way of putting protection there is to make it a contravention to disclose that they've taken a complaint, at least until I and the person complained against know.

    There are several tentacles to your question. I think I've probably missed one of them, if you'd like to....

    As far as doing sample examples, that's a very good way of training, and it's something we should do more of probably. We are trying to put different notices up on our website. We give training sessions to different boards, to ministers' offices. A large number of the reporting public office holders are found in ministers' offices. For example, all the ministerial staff.... Whenever there's a good group, we're more than happy to go there. We try to encourage people to let us come and give presentations and examples. Each year we try to do a presentation to each of the party caucuses. There's a number of fora that we use, and we're going to try to increase our use of the website for information.

    Do you feel that you have all the financial and human resources you need to respond to all the requests you receive and to take a more proactive approach to future challenges?

    We probably have sufficient resources, and, yes, I agree we could probably be even more proactive than we are. I don't think adding new resources is going to change the amount of productivity we have. I think it's important not to let an organization get too big and unwieldy, because there's a value in consistency and communication. We're not a bad size.

    Thank you very much.

    Ms. Dawson, I'd like to get a reaction from you, I suppose. As you are no doubt aware, Democracy Watch has issued a very lengthy dissertation or press release, whatever you want to call it. It's very negative and damning about your office, and not only the office but the overarching legislation and the way it's administered, that really it's not effective or efficient. You probably don't have a lot of mechanisms at your disposal to respond to these allegations. Do you have any comment to make about that? It is fairly lengthy and it was all very negative, as you know.

    Yes. It was so lengthy I really didn't have time to read it all. I've lots of things to do.

    Obviously, I don't agree with much of it, but on the other hand, there's always a kernel of issues hidden among the issues that are raised. You know, I have other things to occupy my mind.

    Okay, then, but if you want to respond, please feel free to write to the committee.

    Mr. Albrecht.

    Thank you, Mr. Chair.

    I have a very brief question. Earlier, Ms. Bennett indicated that in the previous administration it was easy for former Prime Minister Martin and Belinda Stronach to recuse themselves or to have this screen administered because it was obvious they had left the cabinet room. My question is, does that screen only apply while we're in cabinet, or did it apply to all meetings of those personnel, in addition to cabinet meetings?

     I wasn't involved, but I would assume it would apply to all meetings, normally. It's the principle of avoiding a conflict. It's not where you avoid the conflict.

    I think that's important to get into the record, that this recusal, or better yet this conflict of interest screen, applies to all the meetings related to government operation, government business.

     Of course.

    Thank you.

    Thank you, Mr. Albrecht.

    I think that concludes rounds two and three. We do have a motion or a couple of things to deal with before we adjourn. So I'm going to ask you, Ms. Dawson, if you have any concluding remarks you want to address the committee on, and then we will go to the next item on our agenda.

     I give the floor to you if you've got any closing comments.

    No. I thank you for your attention and for your questions. I was happy to have the opportunity.

     If I had known you were going to ask me that last question about what I might have objected to in that long litany of complaints about me, I might have prepared some, because I probably could. And I hope that if there are any questions in your mind about any of it, I'd be pleased to respond to them.

    Thank you very much. I want to thank you for your appearance here this afternoon.

    Thank you very much.

    Colleagues, the next item of business is, first of all, the minutes of the steering committee. Then of course we have the motion from Mr. Easter that we were discussing when the last meeting ended. And we do have a motion from Mr. Poilievre here. I think they are all related--Mr. Easter's motion, Mr. Poilievre's motion, and actually one of the paragraphs of the steering committee; they're all somewhat related.

    First of all, I'd like to deal with the minutes of the steering committee, and perhaps some of them do require a little explanation. One requires perhaps some clarification. I will just go over it.

    This arose from the meeting of the steering committee held earlier today. We agreed to take three action items. The first one is that as part of our future agenda we would invite two departments that received an F as a result of the information commissioner report cards. The thinking behind that, colleagues, was basically that these departments or agencies are not following the legislation, and we just want some explanation as to why that is. Is it lack of resources or is it lack of will? Is it confusion within the legislative framework? Is it political direction? What is the problem that these departments or agencies cannot deal with this particular legislation? Maybe it's people abusing legislation. I think it's important that we do hear from them because it appears to be a systemic issue with certain departments and agencies.

    The last one there--I want to come back to the first one--is that we're going to request the analyst to prepare a memo on perhaps a trip to Washington to deal with the whole issue of proactive disclosure, which is going to be part of our study.

    On the first one, which is related to Mr. Easter's motion and Mr. Poilievre's motion, I do think it requires a little more precision, and I'll just make a suggestion that I think will make it a little more precise. I'll read it: “Thursday, November 4: Invite Nigel Wright to appear before the Committee for 1 hour”-- I don't think the issue deserves any more time than that. The meeting could be extended if the committee so chooses at the time--“and ask him to provide in advance of the Committee meeting extracts of pertinent documents.”

    The term “pertinent documents”.... What we could do is.... Mr. Wright delivered a letter to the chair earlier today, and I will read the last paragraph into the record. Instead of “pertinent documents”, we could say “documents referred to in paragraph four of your letter to the chair dated October 25”. I'll read that paragraph:

    I think that would give the issue more precision, and with that amendment, if that amendment is agreeable, I would....

    Well, first of all, let me do this right. I will invite a mover of the minutes.

    No, Mr. Chair.

    Someone's got to move it first, Mr. Easter.

    I so move.

    Mr. Poilievre has moved the minutes.

    Now it's up to discussion. We do have a list. It's Ms. Davidson.

     Thanks, Mr. Chair.

    The only thing I was going to add was that in the letter that you read out—and I could be incorrect because I don't have a copy of it—at the steering committee, I believe it said November 2 was the date. I thought we had discussed that either November 2 or November 4 we would invite him, whatever date would work for him to come.

    I think we did at the steering committee suggest November 4, but I think the committee would be flexible. We can probably rejig it.

    When I look here at our schedule, I think we could accommodate either date.

    Either one, yes.

    I would like to make that change.

    Well—

    The 2nd or the 4th.

    The 2nd or the 4th. Okay.

    We have the motion before us. I've suggested a friendly amendment. That should really be moved by somebody.

    May I suggest a different amendment, Mr. Chair?

    Okay.

    I don't have the copy of the letter that Mr. Wright sent to the steering committee. But the way it seems to be coming across to me, in terms of Mr. Wright's letter to this committee, is he is, as chief of staff to the Prime Minister, already directing this committee in terms of how this committee will operate, and he will tell us what documents he will forward to this committee. I just disagree with that approach. I think we should manage our own affairs.

    The motion we were discussing at the last meeting basically said specifically what I felt we required; that is, we would have copies of any agreements with Onex Corporation for him to return from his temporary leave to the corporation, and we would also be provided copies of any recusal conditions that he has agreed to abide by as chief of staff to the Prime Minister to ensure he's not in conflict of interest, and further, that would be provided to the committee within five days of the passage of this motion.

    I'm moving that as an amendment so that it is our wording and not Mr. Wright's, which he forwarded in the letter, because we need all those things. I think they are quite similar. We want to hear from Mr. Wright, as I said earlier. We do not agree with the statement of the parliamentary secretary to the Prime Minister in the last week that a precedent has been established in this place and who we can have as witnesses and what documents can be provided. And we definitely need all documents prior to Mr. Wright's appearance.

    So I'm moving not your suggestion but basically the essence of the motion that was on the table at the last meeting as an amendment.

    Okay.

    Mr. Easter, if I understand you correctly, you are amending the minutes of the steering committee to comply with the wording of the motion that you had before the committee. I'll just read it into the record:

    Is that correct?

    And that these documents be provided within five calendar days, which would give us time. This is Tuesday, so going to Wednesday, Thursday, Friday, Saturday.

    Okay. That's probably fine.

    So you're moving that amendment, Mr. Easter?

    Yes.

    Now we have a discussion on the amendment.

    I have Mr. Albrecht.

    Mr. Chair, on the amendment, I think it's redundant. It was clear in this last paragraph that he's going to provide the Onex material, he's going to provide the recusal conditions, so I don't understand why we would go back to this redundant amendment.

     Thank you.

    Mr. Poilievre.

    I appreciate Mr. Easter's desire to be as punctilious as possible. It's not exactly clear to me what his amendment adds—

    An hon. member: Nothing.

    Mr. Pierre Poilievre: —other than to show that the committee will write its own wording and not take any suggestions from anybody outside the committee. I suppose if the goal here is to really flex our muscles and teach people a lesson, that we write our own stuff and that nobody better think they can write something for us, then maybe we should get busy and start writing more and more material. But I think we have everything already captured in this.

    The relevant documents will be here. You can refresh my memory or correct me if I'm wrong, but I think Mr. Wright has agreed to submit them before he appears, giving the committee some time to review them. He's committed to come to the committee to offer testimony and to be questioned on the materials he will have furnished us with. I'm not quite sure what more Mr. Easter's amendment adds to the discussion than what is already there. On that basis, I would vote against it.

    Before we go to Ms. Davidson, I note that one side of the table has delivered a copy of the letter to the other side of the table. I just want to point out the reason it has not been circulated. I did read it into the record this morning at the steering committee, and I will read it into the record now if someone wishes, but it was not provided to me in both official languages. Therefore, I was not able to circulate an English version of the letter.

    Ms. Davidson.

    Thank you, Mr. Chair.

    I have a couple of points. When I look at the amendment that Mr. Easter is proposing, it's very broad. He's talking about any agreements and he's talking about recusal conditions that are not the conflict screen. We just spent an hour and three-quarters with the commissioner, having her explain the difference, in particular, with regard to Dr. Bennett's references to what happened with recusals by former members and how that was not the correct terminology. So I just don't think this motion uses the correct terminology. I think what's in the motion before us, or in the minutes, is correct.

    I would also question how someone who wasn't at the steering committee or subcommittee can change the minutes. The minutes of this meeting from this morning are a reflection of what was said at the meeting, not a reflection of how the full committee wants to add to them. If the full committee wants to add to the subcommittee, they have every right to do that, but I don't understand how they can legally change the minutes of something that actually happened at that meeting.

    To answer your question, the minutes of the steering committee are not binding on the committee. It's the committee itself sitting as the committee of the whole that makes the final decision. So it would be rejected.

    Madame Thi Lac is next.

    Mr. Chair, you brought up something I wanted to discuss. I am a little disappointed to see that the letter is circulating when it has not been translated. You read it this morning at the subcommittee meeting and you did not submit it because it was not in both official languages. I object to the circulation of the letter. All the members should not have it since it has not been translated.

    Furthermore, you have the letter in hand. I agree with Mr. Easter in that all the members do not have the letter and that we are not able to assess all the ins and outs involved. You read it, I admit. I also admit that it was translated by interpretation services. But it is always preferable when we, the members of a committee, have paper copies of documents in both languages when we are deciding on a motion.

    I agree with what you said, as well: even though there is a steering committee, it is the main committee that makes the final decision and approves requests. That was what I was referring to regarding the letter. As chair, you noted that the letter was circulating, but you should have gone a step further and asked that the letters be recalled, as they are not in both official languages and should not be circulating in committee.

     Well, Ms. Thi Lac, I didn't circulate it, and I'm not disagreeing with what you're saying. I couldn't circulate it. I did read it into the record this morning. I can read it into the record if you want me to do that now, but I think it has probably been pretty well circulated—according to the media, anyway.

    Let us vote on Mr. Easter's amendment.

    I have a point I'd like to make, Mr. Chair. I really don't understand the government's resistance to the amendment, which is taking direction from the committee itself rather than the incoming chief of staff. The government will have ample opportunity in the future to take orders from the new chief of staff, but the motion that I put forward certainly sets a clear deadline that we receive the information prior to his appearance. I think that's an important point as well.

    We really need these documents as soon as possible.

    Mr. Calandra.

     Thank you.

    I know the motion the member brought forward is pretty much similar to the letter that we know has gone around or that most of us understand to be the same. I understand that sometimes maybe it plays well back home to be a tough guy, or something like that; I don't know. But sometimes when you take orders from higher powers, maybe on the gun registry, when your leader tells you to vote on the gun registry and you don't want to...sometimes we have a certain level of fake indignation with respect to that.

    What I'm trying to say, Mr. Chair, is that, quite honestly, if the committee is going to seize itself with rewriting the exact same way, every single time because we feel like pumping our chests out and being tough guys or tough men and women and really promoting how tough we are as a committee...regardless of the fact that you said the exact same thing that we want, we're rewriting it and putting our name at the end of it.... If that makes the member feel better.... I'm not sure how the members opposite work. I know they take orders from their leader's office and I know it stresses them greatly. But here you have an opportunity to hear from the potential chief of staff prior to him becoming a member, so that we can avoid problems and we can maybe make some suggestions. I think that's a good thing and not a bad thing.

    I think it's actually spectacular that he's being as open and honest with his commitments. I think it's also quite unique that he's coming to this committee. We hear so often how disappointed they are or stressed they are when they don't get the appropriate people in front of them. Here you have the opportunity to hear what the terms of references might be, to make some suggestions in advance of him signing on to become the chief of staff.

     I'd say to the honourable member, I know that you probably got some talking points from the leader's office that told you to act tough so that you could suggest how the new chief of staff was put in his place by the Liberal Party, and I suspect that in the next two minutes you might flip-flop on that, as you have on so many other things....

    But having said this, if that's the usual practice here—and granted, I'm only here two years and I don't have that institutional knowledge that some of the members who have been here too long have—if it makes them feel better and if that's how the committee operates, they just ignore what the subcommittee does and they feel better about it, then it's a pretty sad commentary that members of Parliament would behave in such a fashion, and that this is how we would be starting a relationship with a gentleman about whom I had hoped, regardless of what party he is with...that we would all respect the office and the position he's taking. I don't think that's the way we've started here today, that's for sure.

    Okay.

    Ms. Bennett.

    I think the subcommittee this morning felt there was a consensus that we need the documents before Mr. Wright testifies in order for us to look at them and do some sort of scenario planning in terms of what if, what if, what if, kinds of questions.

    I think Mr. Easter's motion is really just adding a deadline to make sure we will have time to prepare properly for when Mr. Wright appears.

    Mr. Poilievre.

     I think that closes the gap a lot. If all that Mr. Easter's motion adds is a deadline, as Ms. Bennett says, then there should be no problem with that. We can put the five-day requirement on the existing subcommittee report, which was unanimously agreed upon by committee members this morning, and let's move on.

    So what you're saying....

    I would propose, then, that we amend the subcommittee report to include Mr. Easter's five-day deadline, that the documentation be furnished to the committee and its members within five days, and away we go. That would be my proposed amendment.

     Okay.

    Mr. Chair, I think we already have a motion on the floor. I really can't understand.... We previously debated the motion that's on the floor. It was translated. Mr. Wright's letter--we're going by what you read out to us. We thought seriously about what we required from Mr. Wright, and that was in the motion I tabled early last week.

    If the government members agree, it basically says the same thing. I can't see what is wrong with the motion we put forward. I don't know why they're so intransigent and want to go to what Mr. Wright said in his letter.

    I know what this says. I do not know what Mr. Wright specifically said in his letter.

    Let us vote on Mr. Easter's amendment, which he's entitled to have a vote on.

    His wording is:

    Then it says:

    That is all within five days.

    Let's vote on the amendment.

    There is a tie vote. I don't see an awful lot of difference, colleagues. We're splitting hairs, so I will vote in favour of the amendment.

    (Amendment agreed to)

    The Chair: I don't believe there's anything further to come before the meeting.

    We haven't voted on the amendment, Mr. Chair.

     You're right, Mr. Albrecht. Sorry.

    We will vote on the minutes of the steering committee, as amended.

    (Motion as amended agreed to)

    The Chair: The minutes are approved. I think that's everything we have to do.

    Mr. Albrecht has the floor.

     I think it's important that we did say November 2 or November 4. Mr. Wright clearly indicated November 2. We know he's available on November 2. We don't know if he's available on November 4. If we go for November 4 and he's not available, we'll miss our opportunity.

    I think we agreed to that.

    Okay. I didn't know that we'd agreed to November 2.

    It's November 2 or November 4. We'll try to set him up.

     I just wanted to be sure.

    That's fine, as long as we have the documents, which we should have beforehand.

    Yes, we should have them within five days.

    The meeting is adjourned.