Good afternoon, Mr. Chair and members of the committee. I am pleased to be here today to discuss the legislative review of the Lobbying Act. I am accompanied by Mr. René Leblanc, deputy commissioner, and Mr. Bruce Bergen, senior counsel.
I am submitting to the committee my report on the experience of administering the act over the last five years. The report contains my recommendations for improving the Lobbying Act.
At my December 14th appearance before this committee, I outlined a number of issues related to the review of the Lobbying Act. Today I would like to elaborate further.
Let me begin by saying that in my view several aspects of the Lobbying Act are working to increase transparency. More than 5,000 lobbyists are registered to lobby federal public office holders, and every month hundreds of communications with designated public office holders are disclosed by lobbyists. However, based on my experience, key amendments to the act would capture a greater share of lobbying activities and enable me to enforce it more decisively.
The registry of lobbyists provides a wealth of information on who is engaged in lobbying activities for payment, but does not capture the lobbying activities of organizations and corporations who do not meet the “significant part of duties” threshold. That threshold is difficult to calculate and even more difficult to enforce. That is why I am recommending that the “significant part of duties” provisions be removed from the act. In doing so, I would also recommend that Parliament give consideration as to who the legislation should capture and that a limited set of exemptions might be necessary. I would be pleased to explore this issue with Parliament during its deliberations.
The senior officer in a corporation or organization is currently responsible for reporting on its lobbying activities. I believe this accountability is important and should not be changed. That said, I believe it would be more transparent if the names of those engaging in lobbying activities with designated public office holders were also listed in the monthly communication report. Currently only the senior officers are listed, even though they might not have attended the meeting.
I also recommend that all oral communications, regardless of who initiated them and whether or not they were planned, should be reported. Currently only oral and arranged communications are recorded monthly. Deleting “and arranged” would increase transparency by disclosing any chance meetings or other communications between lobbyists and designated public office holders where registerable subjects are discussed.
The act provides me with a mandate to develop and implement educational programs to foster public awareness of the act. I believe that communicating the rationale and requirements of the act and the Lobbyists' Code of Conduct leads to greater compliance. It is for this reason that I recommend that this explicit mandate remain in the legislation.
In terms of my ability to enforce the Lobbying Act, the only measures available to me are referrals to the police for a breach of the act and reports to Parliament for a breach of the code. In December, I suggested that these enforcement measures may not be appropriate for the different levels of infractions I encounter.
When I refer a file to the RCMP, the act requires that I suspend looking into the matter pending the outcome of their investigation. Since July 2008, it has taken the RCMP on average eight months to review a file. In all cases, the RCMP decided not to proceed. As I can only continue with my own investigation once a decision has been taken by the RCMP, this affects my ability to render decisions and table reports to Parliament in a timely manner.
At my December appearance I indicated that lobbyists are voluntarily coming forward to disclose that they were late in registering or submitting monthly communication reports. I see this as an encouraging sign that many lobbyists want to comply with the act. I do not believe the public interest would be well served if I were to refer such files to the RCMP for criminal investigation. For these and other lesser transgressions, I have decided to educate and monitor these cases. I do not see this as letting them off the hook. Employing such alternative measures encourages others to come forward. In addition, as I indicated, individuals subject to education and/or correction continue to be monitored to ensure they remain in compliance.
For that reason, I am recommending that an administrative monetary penalty mechanism be adopted. This would provide a continuum between my current practice of relying on educational measures and the lengthier processes of referrals to a peace officer or reports to Parliament.
Despite the available penalties under the current act, no one has ever been charged, or convicted, of an offence under the Lobbying Act. I am of the view that, unless there are amendments to include a range of enforcement measures, probabilities of convictions for breaches of the act under this legislation are low.
As I have mentioned before, the Lobbying Act prescribes that investigations must be conducted in private. This should not be taken as an indication that I am not enforcing the act. In fact the opposite is true. I am enforcing the act to the full extent provided by the current provisions of the legislation. I have sent six files to the RCMP, I have tabled three reports in Parliament for breaches of the code, and three additional reports have been sent to individuals to provide them with an opportunity to present their views as required under the act.
I continue to believe that conducting investigations in private assures their integrity and protects the reputations of those who may have been wrongly accused. This is not insignificant. However, I have started confirming to parliamentary committees that certain administrative reviews and investigations have been open when the matter was clearly in the public domain. As a result, I think it is important that the act be amended to include provisions that would offer the commissioner or any person acting on my behalf some degree of immunity against criminal or civil proceedings, libel, or slander.
I would now like to take this opportunity to address some of the criticisms that you may have seen recently in the media. With respect to the application of rule 8, on improper influence, of the Lobbyists' Code of Conduct, both my guidance and my reports to Parliament clearly indicate that helping someone get elected is in his or her private interest and might put the lobbyist in breach of the code, depending on their lobbying activities.
My interpretation reflects the judgment of the Federal Court of Appeal, which was quite conclusive in overturning the old interpretation of rule 8 and in offering clear direction regarding how it should be interpreted. Contrary to what transpired in the media, my guidance does not prohibit lobbyists from engaging in political activities.
I believe that lobbyists are professional and that I have provided them with sufficient information to allow them to make decisions. This way, they can exercise caution when engaging in political activities, taking into account their lobbying ones. In fact, some lobbyists have indicated that the guidance and clarifications were sufficient and are arranging their affairs accordingly.
The issue of my decision not to provide advance rulings has also been raised in terms of which political activities they might perform without risk.
First, I would like to state that I do not regulate political activities.
Second, I am enforcing the act that Parliament enacted. Under the act my decisions are judicially reviewable. It is therefore imperative that all of my decisions be fair and be based on all relevant facts. I must be prudent in relation to advising lobbyists regarding potential situations based on information that could easily change after the advice has been given. It would put at risk not only a person to whom I would provide this ruling but also my ability to look into the matter in the future should there be allegations against this person. My neutrality and my ability to be fair would be compromised.
In conclusion, I want to assure members of the committee that I have been administering the Lobbying Act as Parliament has enacted it. As the administrator of the act, I look forward to working with the committee on the legislative review to find ways to further enhance transparency and better ensure compliance.
Mr. Chair, this concludes my remarks. I want to thank you for your attention and I will now be pleased to answer any questions the Committee members may have.
Thank you very much, Ms. Shepherd.
As Ms. Shepherd has indicated in her remarks, there are a lot of issues swirling around out there about the present lobbying legislation. It's the chair's opinion, and it's the chair's opinion only, that the act does cry out for substantial revision or substantial amendments.
This committee, members of the committee, and members of the public have made many complaints and overtures or interventions over the last number of years on the Lobbying Act. Some of the provisions Ms. Shepherd has alluded to, but there are others that this committee is going to have to look at very carefully when we do the study. I'll just list some of them, and this is not extensive or exclusive.
What constitutes lobbying? Is our definition satisfactory?
Is the five-year ban on all public office holders, MPs, and others reasonable and justifiable in today's society?
There have been discussions in some fora that designated public officers proactively record and disclose their contracts with lobbyists. Is this good public policy?
Ms. Shepherd has alluded to the 20% rule, or the significant part of duties. We see people go into positions of government relations but who do not have to record as lobbyists because in their own opinion they are not spending more than 20% lobbying federal public office holders. Is this good public policy? Of course Ms. Shepherd is recommending a substantial change to that.
Should the lobbying commissioner proactively oversee the employment and other activities of former public office holders? The lobbying industry, again as Ms. Shepherd has pointed out, has expressed many concerns about code rule 8. What exactly can they do to assist political parties and candidates for political office? Ms. Shepherd of course has indicated that the present rule is clear, although many in the lobbying industry indicate that it is not clear.
The whole issue of transparency has to be talked about, because we have a situation where there have been complaints filed years ago, and we're just not exactly sure where they stand in the queue.
One of the biggest problems I see is a substantial lack of enforcement of the Lobbying Act. The fact that in the past 22 years no one has ever been charged speaks volumes. It's my view that the present legislation is compromised by imposing a duty upon our peace officers and public prosecutors to enforce what I consider to be an administrative function. Of course over the last 22 years the peace officer community has not shown any appetite to get involved in any prosecution under this particular act.
The fact that the commissioner has no powers other than to report the matter to the House, does not have power to suspend or anything else, I think is a serious matter. And then of course if it is reported to the House, as it was in a couple of incidents, about a month ago, what exactly should or would the House do in that situation?
These are just a couple of my own examples of some of the issues this committee is going to have to deliberate on very carefully. I think it's an important role we are embarking upon. And as I said, we have our first and perhaps one of our more important witnesses, the commissioner herself.
Having said that, we're going to go to round one.
Seven minutes, Mr. Easter.
As indicated, I had said some time ago that I would be available here from 4:30 to 5:30, and of course we can never account when we are interrupted by a democratic impulse, which we all just satisfied, and now we've returned. I will stick with my commitment to be here until 5:30, and of course I'm willing to be here next week also, if that's of any help to my colleagues.
The whole issue of open government is something that we have been, as a government, pursuing for some time. I certainly, in relation to my Treasury Board responsibilities, for some months now have been wanting to move this file along. I appreciate the work of the committee and your interest in this.
Some people might say or think or wonder if there's any coincidence in terms of us talking right now about open government, open information, open data.
I would say that this presentation, which has been booked for some time, has been somewhat overtaken by events. Some may see it as a happy coincidence. Others may have another particular view on it.
I want to walk you though what we have so far. This is a new approach to making information available. It's something that some other governments have done. It's something we have been doing in some departments, to a degree, and now we've brought it together all into one focus.
I would like to congratulate you for the work you have done and for your goal to have a more open and more specific portal for our fellow citizens.
It's the approach we're going to take.
I'm going to abbreviate my remarks, given the time, but I do want you to see for yourselves, if you haven't yet, what we're talking about.
Mr. Chairman, this is what the site actually looks like.
We're talking about open government. We're dividing this into three sections, the first being open data, the second being open information, and the third being open dialogue.
I have outlined some of this publicly already and what we are talking about with open data.
First of all, as we all know, all departments and agencies have huge amounts of data available to them from all the work that is done. Largely, that data has not been available in readily readable format for the individual citizen. Because of the increasing demand and expectation for openness and transparency and for all the information that government has that it can legally bring forward, we've selected ten departments and we have indicated to them that they need to start making their data available in a form that is more readily accessible and readable.
It's a comprehensive approach. It's incremental in terms of our being open about the fact that we haven't developed this perfectly. This is a work in progress. This work is going to continue, with your advice too, as it moves along.
Open data is offering government data in useful forms to help citizens, not-for-profit organizations, and others to see what is there, and then to be able to use the massive amounts of the data for viable purposes.
There are five elements of the plan, and we have talked about this. There is the building of a public-facing Government of Canada open data portal, then providing and increasing the access to data that is federally available from departments and agencies, and then exploring the potential. We want to continue to push this envelope, and I know that your committee will assist in doing that.
There have been certain policies relative to open data that have to continue to move not just with the demand, but with the technological capability that's there to make information available. I'm going to be pushing the management policy on this to make this more and more available. When we say that this is a pilot, it doesn't mean we're trying something to see if it works. This is a policy commitment being worked broadly in ten departments right now, but all departments are being served notice that this is going to be the expectation. I don't want to say that it's the way of the future, but it's the way of the present. We are developing a longer-term Government of Canada open data strategy along with the milestones. We have already fulfilled our commitment to build the portal, but we want to move it along.
Just as an example of what we mean by raw data and what happens to it, Environment Canada accumulates untold volumes of information on everything you could possibly imagine related to climate and weather and everything else. I won't even start to go down the list. More and more we are going to require that departments do their data in a way that people can access and use. If people go online, they will see the type of information that Environment Canada makes available. From that people can do something with it in a way that is helpful to individuals. I'm not advertising for them, but the Weather Network was able to take this information and develop an application, also known as an app, related to current weather observations, sophisticated modelling data, and the result is a cross-country continuous feed of weather data.
As a government, we haven't said that this is what has to happen, but by making the data available people can take it individually and they can use it for research and academic purposes. Frankly, it's information that was gathered for public use, so if people want to make an application out of it, they certainly can. We're finding that people have used this for commercial purposes, and there is no issue with that.
Natural Resources Canada uses geospatial data of every type imaginable. Here's a Toronto company that is able to take this data, whether we're talking about information related to congestion in cities, power supplies, emissions, whatever it might be, and come up with an everyday life assessment. This is a Toronto company that has done this. Again, I'm not advertising, just using it as an example. ESRI Canada is able to take this raw data and use it in a way that's helpful for them and also available and helpful to others.
So whether we're talking about entrepreneurs, researchers, academics, or voluntary organizations, this raw data in large numbers--there are now 261,000 different data sets--we're number two in the world with what we've now been able to have online through one portal. We're going to continue to develop this over the next 12 months. We expect to be able to double the amount of available data. It needs to be perfected. It is out there now and people can turn to it, but we want to continue to see it evolve. So this is open data, which can be taken and used in almost any way imaginable.
The second aspect--and I'm trying to really move quickly here--is open information. We are requiring departments to be proactive about everything they do and to make that available in terms of their activities, again, through one portal under open information. Of course the public has a right to know, but they also need the ability to access it.
Government departments, as you know, are always commissioning reports, gathering information, and we want to make the reports that are done, the activities of departments, available and accessible so people can see exactly what is going on. So let me use that in a way that's relevant to some of the discussions we've been having in the last couple of weeks related to access to information.
We are now requiring departments--the ones involved in the pilot, but this will be required of all departments--to summarize the access to information requests they get. We're obviously not putting the individual's name out there--that's something that needs to be protected--but the public broadly needs to see the types of things that government's being asked for and whether government is coming out with the information or not, and if they're not, what the restrictions are.
So we're posting summaries of completed access to information requests online. Also, this moves to allowing access to information requests and payments to be made online to greatly speed up the process. As you know, if you've ever had to struggle with an access to information request, sometimes the delay is because it has to go through numerous departments. This accelerates that process and forces departments to move it through quickly and not to allow that to be a source of any kind of inordinate delay.
The final aspect is that every department literally does all kinds of reports and studies, and these should be made available to the public and to individuals. So we're working with the Commissioner of Official Languages right now. We want to pilot the posting of these reports that are commissioned by the government into what we call a virtual library. There are issues here with translation.
If a department gets a report commissioned for its own use right now, that report may be in either of the two official languages. If we make this available, the cost of publishing every single report in two languages when they're not being asked for would be prohibitive. So we are working with the Commissioner of Official Languages to see about this virtual library being developed and how people can access all the reports, all the various analyses that government does.
Finally, and I'll close with this one, the third portal is open dialogue. This is the “Consulting with Canadians” portal.
As you know, governments consult. They have consultative processes that they engage in publicly, and it's important that they do this, whoever the government is, going out from coast to coast, from town to city, highways and byways, to be available to the public. Obviously, not all Canadians can get to these meetings, and open dialogue means that all Canadians will be able to access all consultation processes that are going on. By requiring the departments to post that online and to post the mechanism so that they can receive input.... And the person having the input, as if they were actually at the public meeting, will also be able to get a response, and they'll be able to track whether their response was listened to, acknowledged, and how it's going to help the process to move along.
As you know, we've got the red tape reduction commission that is going on, so people would be able to look at this list and they can see the public consultations that are going on right now. They click into the one they want and that will pop right up. There it is. Here we are, open government, the red tape reduction commission. Individuals can have their input into that online, expect a response, and expect their input to be evaluated.
What we are requiring of departments is all consultations now would be available to individual citizens online, even if it's an MP, a committee, or whatever it is doing a tour of the country to get valuable input. I could go on, but I don't want to deprive you of some quick questions. This is the direction in which we're going. This is already a fait accompli. Citizens can go on to these portals right now and access this information. We're learning as we go, so I'm not going to apologize if there are imperfections. We do want to see it improve. We do want to see it increase. Open government means open portals on data, on information, and on dialogue.
Thank you, Mr. Chair.
Well, there's a risk that we might not be back for a little while.
Please allow me, on behalf of the government delegation, to thank you, Mr. Chair, for your good work on this committee, and for your career. We really appreciate the effort and the time you've dedicated to this place.
Some hon. members: Hear, hear!
Mr. Pierre Poilievre: Likewise, allow me to thank Mr. Siksay, who has decided to make this his last term in office. We've always found him to be very fair-minded and a good-natured member around this place. We have a lot of respect for him.
Thank you very much, Bill, for all you've done.
Some hon. members: Hear, hear!
Mr. Pierre Poilievre: Finally, Minister Day, for your quarter century of commitment to public life, thanks for your work, both at a provincial level and a national level, and the enormous sacrifice that you and your family have made for this country.
I hope your wife will accept our apologies for all the times that you needed to be with us. Your whole family has sacrificed for this country.
Thank you very much.
That concludes my remarks. I think this will be the first and last time that I'll ever get applause from this committee. But thank you very much to all the members who are retiring. Thank you.
Some hon. members: Hear, hear!