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Standing Committee on Access to Information, Privacy and Ethics



Wednesday, March 23, 2011

[Recorded by Electronic Apparatus]



     I will now call the meeting to order.
    I want to welcome everyone here.
    This meeting, colleagues, is really the start of our study into the Lobbying Act. The statutory review of the legislative provisions of the Lobbying Act has been referred to us.
    We have a number of witnesses scheduled. The first witness we want to hear from is the commissioner herself, Karen Shepherd. She's with us today. She's accompanied by René Leblanc, the deputy commissioner. Mr. Bruce Bergen, senior counsel, is also here.
    Mr. Chair, I have a notice of motion that I want to table.
    We seem to be getting a lot of feedback; it seems to be echoing. Randy Hoback is from the Prince Albert area, and sometimes he and I row a little bit.
    I hope this is not going on the record. I suppose it is.
    When he talks, there's a big echo; when I talk there's a little one, Mr. Chair.
    Mr. Chair, I want to table a notice of motion:
That the committee requests that the Prime Minister's Office, the Privy Council Office, Indian Affairs and Northern Development Canada, Natural Resources Canada, and Environment Canada, provide it with all correspondence, both electronic and written, from and to Bruce Carson from September 1, 2008, to March 18, 2011, and that this information be provided to the committee within three calendar days.
    It's a notice of motion, Mr. Chair.
    Okay. Thank you very much, Mr. Easter.
    That would require the 48-hour statutory period. It has been distributed. You would be entitled to move that motion anytime after Friday.
    Having received that notice, I'm now going to go back to the orders of the day.
    The first item is that we're going to hear from Ms. Shepherd concerning the issue of proposed legislative changes to our Lobbying Act. The chair has a few opening comments after Ms. Shepherd, and then we'll go to questions.
    Ms. Shepherd.


    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.


    Thank you, Mr. Chair, and also thank you for the overview. I think you touched on a lot of the issues the committee actually has to deal with.
    First a question on an ongoing investigation before I get into the Lobbying Act itself. I think you publicly confirmed, Ms. Shepherd, on several occasions that you are investigating Rahim Jaffer and Patrick Glémaud about possible violations to the Lobbying Act. That has been almost a year since this issue arose. Do you know when you might be delivering a report? Or what can you tell us about that ongoing investigation?
    As I said to the committee in December, and I meant very much what I said, in terms of this, it is a priority for the office. When I was here in December as well I also described a process that my office goes through in terms of looking into a file from an administrative review into an investigation. And I also described that during that process, with the act as I have now, should I at any point in time have reasonable grounds to refer a matter to the RCMP, I must suspend looking into a matter. As I indicated in my five-year report, when any file is over with them I don't have control in terms of the timing things.
     You mentioned in your remarks to us that's a problem, and it takes an average of eight months to review a file.
    How many cases have you referred to the RCMP?
    I have personally referred six files to the RCMP.
    Okay. You've outlined in your remarks that it's a problem. How do you see overcoming that problem with proposed changes in the act? Should you be allowed to continue to investigate? What process do you see for getting around the eight-month delay with the RCMP?


    It's one of the reasons I've suggested having the ability to have some kind of administrative monetary penalty mechanism. That would give me the ability--especially if there's a continuum--to go from my practice now of educating, to do referrals to the Royal Canadian Mounted Police.
    In certain situations you can have a continuum that will allow for repeated offences and different levels of transgressions. I've seen that with some of my colleagues in the provinces, who have the ability to issue penalties. If I saw something, especially if I thought it was in the public interest and wanted to get something out, I could do a file, do an administrative penalty, and it would be within my control as to how fast I moved on a file. I wouldn't be dependent on another body to look at it.
    As I think the chair mentioned in his remarks--and I think Mr. Murphy mentioned--the RCMP, police, or whatever are probably not going to make violations to the Lobbying Act a priority when they have robberies, thefts, you name it as other files on their agenda.
    On the administrative monetary penalty that you outline in your paper, do you believe you would go that route rather than bringing in the RCMP or police for the criminal side of it?
    I definitely would like a continuum. I think that's one of the things with Parliament. Do we want to look at this as a criminal infraction? If it's a criminal infraction, it needs to go as high as the RCMP.
    When I look at what powers the Alberta lobbyist registrar and commissioner have, they have two levels. For a level-one offence it's $25,000. Then they have what is almost a second tranche or second level up to $100,000.
    If something were put in to give the commissioner the ability to issue monetary penalties as high as $100,000, that would probably be more than sufficient, in terms of not needing to send something to the Royal Canadian Mounted Police.
    On loopholes in the Lobbying Act itself--this is really for clarification--is it true that no one has to be registered as a lobbyist if they are not paid for their lobbying, and if they are lobbying about the enforcement interpretation or application of any act of Parliament or regulation?
    In the first question, the Lobbying Act does refer that an individual must be paid for and communicating on a registerable activity, which is to amend or change a policy, program, bill, or regulation to obtain a financial benefit. I've also looked at it as they may have the payment in hand, but if there's an expectation of payment as well, that's how I've determined there is payment.
    I think you had a second question.
    It was if they were not paid for their lobbying.
    If there's an expectation of payment, that to me would be payment.
     If you are communicating about an existing law to acquire a better understanding or to be in conformity, that wouldn't be considered lobbying. If you are communicating, even if you were paid to be in conformity or to get clarification on a particular law or regulation.... It's when you are communicating to change that particular law or regulation that the issue of that becomes a registerable activity.
     For clarification, when people come to the government under the employee exchange program, are they exempt from the five-year ban on lobbying when they return to their corporation after working with the government? That interchange happens a lot.


    Yes, they are exempt from the five-year prohibition. There's an explicit exemption.
    Is it also true that the Lobbyists' Code of Conduct does not apply to anyone who is not registered or required to register under the Lobbying Act?
    That's not correct. If they should be registered under the legislation, then the Lobbyists' Code of Conduct would apply. It's like the case I filed on Mr. Bruce Rawson. He was not registered at the time.
    Thank you.
    Thank you, Mr. Easter.
    Madame Freeman.


    Good afternoon, Mrs. Shepherd, Mr. Leblanc and Mr. Bergen. Thank you for being here. Thank you for your presentation.
    On July 22, 2010, Mary Dawson, the federal conflict of interest and ethics commissioner, called for greater freedom to discuss her investigations. You raised this earlier when you said that just because people don't hear about investigations doesn't mean that you aren't doing anything about them or that no work is being done.
    So, Ms. Dawson called for greater freedom to discuss the investigations she is conducting. Do you feel this same need to be able to freely disclose to the general public the cases you are working on? I know that you have to report to Parliament, based on what I had been told by the law clerk and parliamentary counsel of the House. You are authorized to disclose this information to Parliament. Don't you think, as Ms. Dawson does, that you should be freer to discuss these investigations?
    Well, to be frank, as I said in December, when a case is really in the public domain, I have no problem stating that I am in the process of looking into the situation.
    In some other cases, there is a risk that this will harm the investigation that is under way. As I said in my five-year review of the act, it is important that I continue to conduct my investigations in private to ensure the integrity of those investigations. This protects the capacity to obtain testimonies and documentation. It also allows me to make a fair and unbiased decision.
    The difference for me is that it allows me to study the situation. If I disclosed to the public that I was conducting an investigation, there would be a risk that it would end up in the media, which may harm the integrity of my investigation, which I want to protect.
    So I fully agree with talking about cases to the public and saying that I am indeed reviewing these cases, but I can't discuss the details of them.
    Ms. Dawson wasn't necessarily talking about discussing the details of an investigation. She was simply saying that she would like to have more freedom to talk about the cases she was working on.
    But, still, you've answered my question.
    What do you think about subsection 4(2) of the Lobbying Act, which allows for "any oral or written submission made to a committee of the Senate", or to other parliamentary committees? Should it be repealed or amended? Because that subsection allows anyone to lobby in private with regard to the application of federal acts and regulations.
    I would like your opinion on that section of the act.
    I'll answer first, then perhaps Bruce will add something.
    I think that the purpose of the act is to ensure transparency. When someone testifies before a committee, that information is already public; it is possible to read all the testimonies in the minutes. So, I don't think that this subsection of the act needs to be amended. I would leave it as is.


    You also said that, as far as penalties were concerned, they were fairly minimal and that, ultimately, there are very few penalties for lobbyists who don't comply with the act.
    Can you clarify your thinking about this and tell us what penalties you would prefer?
    Perhaps I didn't express myself clearly.
    If I have reasonable grounds to believe that there has been an offence under the act, I must turn to the RCMP. As far as administrative penalties set out in the act, it is up to the RCMP and the Office of the Prosecutor to decide to bring the case before the court, and the criminal court is there to determine the penalty.
    But I would like to have the ability to impose penalties myself, at my discretion. As I mentioned, there are different regimes. Parliament could decide that it isn't necessary to refer all cases to the RCMP. It might be a good idea to give the commissioner the possibility of imposing penalties up to a maximum of $25,000.
    You would like disciplinary measures that are much more rigorous and much more severe.
    I would like to know something else. Are lobbyists required to disclose how much they spend on their lobbying activities?
    Not under the current act, no.
    Do you think this is right, or do you think it should be discussed?
    That's a good question. When amendments were made to the act in 1996, I think it was, and in 2005, this issue was discussed a number of times. Frankly, I don't know how this would enhance the principle of transparency. The money paid to a lobbyist doesn't indicate whether the lobbying has had an impact. Is a lobbyist successful because he has been paid more than another one? I don't think so.
    No, I'm talking about what the lobbyist spends to lobby, what he spends on attending his meetings and all that. So, you don't think that this is important necessarily.
    The analysis doesn't indicate whether the lobbying has been successful or not. I don't think that this has an impact on the application of the act. It doesn't increase the transparency of the lobbying activities.
    Thank you, Mrs. Shepherd.
    Thank you, Mrs. Freeman.


     Mr. Siksay, seven minutes.
    Thank you, Chair.
    Thank you for being here, Commissioner, with your colleagues.
    Commissioner, just to follow up on Madame Freeman's point, do you know of any jurisdiction that does require the disclosure of the amount spent on lobbying? Is that part of the regulations in any other jurisdiction you're aware of?
    The only jurisdiction I'm aware of is in the United States. To be honest, I think it makes more sense there than here because of their campaign and election laws. It's a different focus.
    I want to go back to some of the points you made in your statement today. You said that some amendments to the act might help capture a greater share of lobbying activities. Have you done an analysis about what percentage we capture now and what percentage is unreported, secret, or goes on under the radar?
    I don't have any solid stats.
    When it comes to some of the oral and arranged meetings, just from what I get from doing the outreach activities, there are meetings that aren't being captured because of the question of what is arranged, or meetings that are initiated by a designated public office holder. Unless they are about a financial benefit, they do not need to be reported. I have had some say that maybe they'll call the individual in. That's what concerns me when I look at transparency.
    You don't have any sense of--
    I don't have any numbers, no.
    In terms of removing the “significant part of duties” threshold, you also have said that it might be good to take that out and replace it with a limited set of exemptions. Could you suggest what those kinds of exemptions might be, or what would be appropriate, or what other jurisdictions have done when they've looked at the question of exemptions?


     Right now in Canada, the one jurisdiction that has gotten rid of the “significant part of duties” time is the city of Toronto. They have an incredible list, though, of exemptions.
    What I'm saying by “limited” is if you make the list too extensive, then that becomes problematic as well. When Parliament first put in a “significant part of the duties” test, it was probably recognized that there are certain organizations or corporations that might be coming in once a year. When you think of the fourth principle of the legislation, it is that you shouldn't have a system that prevents this natural activity from occurring.
    Some good examples could be the non-profit charities. When I'm looking at exemptions, if you were to remove it totally, some of the charities might be.... I don't want to say they're in danger of losing their exemptions or their status with Canada Revenue Agency, because they're not allowed to use funds for lobbying purposes, which might be one of the reasons why the 20% rule was put in.
    You mentioned earlier an enforcement mechanism, an administrative penalty mechanism for criminal charges. You mentioned Alberta as a jurisdiction that had that possibility. Is that a good model for administrative monetary penalties? Are there other jurisdictions that you think might provide an example of what that regime would look like for us?
    There are two regimes. Other provinces have fines and jail terms in their acts, but they have to go to another body. The two in Canada that have the ability to administer it themselves are British Columbia and Alberta. I believe British Columbia representatives will be coming next week, so they could explain it further.
    They are relatively new, I believe, in both jurisdictions. I don't think either of them, to date, have issued penalties, but in looking at the schemes…. I was talking to my colleague from Alberta about the education of the mandate. He has the ability to issue penalties, and it's almost like the first tranche around. If he's explaining a new act, he's saying okay, the first pass, but there's a warning for the next time around.
    You mentioned that the RCMP haven't acted on any of the files you have sent to them, and haven't pressed charges in any of those cases. I suspect you can't discuss the details of those cases, but have you done any analysis of why those decisions not to proceed were made? Is there anything common to those, that's a flaw in the legislation? Is there anything you can offer on why those haven't proceeded—after you apparently believed that they were worth referring on, in terms of a criminal investigation?
    We can refer to the handout. I gave a list of the ongoing cases. In the comment section, I put the reasons why the RCMP has been returning the files.
    Could you maybe just point out a couple of those to me? I haven't looked at the chart before.
    If you take A40, where it says “The file was suspended for two years while with the RCMP”....
    It's on page 2.
    If you take A6, “Founded, and referred to the RCMP. RCMP advised that they would not proceed on the basis that there was insufficient evidence that events occurred", that's the Bruce Rawson report that I just tabled.
    In a lot of cases, there is insufficient evidence. There are a few—they're in the pie chart as well—where the reason is the time limitation. The previous act had a two-year time limitation. It was extended under the Lobbying Act, but that affected their ability to look into things and to lay criminal charges.
    In addition, part of this issue really boils down to a very simple difference. The commissioner's duty to refer a matter to the RCMP arises when she has reasonable grounds to believe that there may have been an offence under the Lobbying Act or any other law. Then the RCMP will conduct their investigation and consult with their legal counsel. In essence, they look at whether they can prove all elements of the offence beyond a reasonable doubt, in a court of law, which is a higher standard of proof. That is the way the system works.
    That explains the discrepancy, in my mind anyway, between the number of cases referred to the RCMP and then, months later, the RCMP in consultation with the prosecutors decide that no, they are not going to be laying charges in this case because they don't believe there is a reasonable probability of conviction.


     Thank you, Mr. Siksay.
    Ms. Davidson, seven minutes.
    Thank you very much, Mr. Chair.
    Thank you to you and your colleagues for being with us again today. Certainly this is an interesting subject. I know we've had some conversation on it in the past, but I think it's good that we are starting this review.
    There's already been a question alluding to this today, and there's been some discussion on whether or not to require the designated public office holders to proactively record and disclose their contacts with lobbyists. What's your position on that?
    The act has always placed the onus and the responsibility to comply on the lobbyist, who actually is usually the beneficiary of the lobbying activity. Changing it to the public office holder's responsibility, depending on how it's done, could change the focus of the act. I think that's the consideration. They then become responsible for having to determine whether or not that person should be registered.
    If we keep the current regime the way it is, then we'd be asking public office holders to determine if they have hit the significant amount of duties test, for example. The issue then would be asking them if they are paid or unpaid, coming into the legislation, as opposed to it being with the lobbyist. It becomes a different focus of the act.
    I think that's where I'd be saying to Parliament, “Is that where we want to go with the focus?” The other question I would have for Parliament is whether we are then putting the onus on the public office holder, or whether we are going to be having the public office holder and the lobbyist responsible for reporting meetings.
    From an administrative point of view, I can see an enormous amount of problems. As well, are they reporting to me as a public office holder? Right now, with the registration system, the monthly communication report is tied to the registration. They have the one number, and it specifically links to the registrations. Having the responsibility with a designated public office holder is then....
    From a systems point of view, how do I tie that to a registration? If I take any one of you, or the ADM of industry, who'd be meeting with several individuals, it would be a nice challenge trying to tie that to the registrations.
    It probably works better the way it's set up right now, then.
    I think so, yes.
    Can you talk a little bit more about your ideas on administrative sanctions? Perhaps you can relate them back to some of what your other colleagues may have in place.
    To go back a bit, right now the only sanction under the act is to refer something to the Royal Canadian Mounted Police. For lesser transgressions, such as late filings, it doesn't make sense, so I've been educating and monitoring.
     But when we're looking at a regime--
    That's been the process--excuse me--up to this point, the education?
    I've started doing that with some of the files. When you look at the sheet in front of you....
    There was a case where, under the previous registrar, we had reasonable grounds. The individual hadn't registered. They actually registered during the process of the review. It went over to investigations. If I'd had, or the registrar had had, the ability to issue a monetary penalty, the individual probably would have been fined.
    I would like the capacity, clearly, to post their names on the website. Part of having the website and putting up the names is that it shows there are consequences. There is general deterrence.
    So I don't think everything warrants going to the RCMP, even if the decision by Parliament is to keep it a criminal infraction.


    You talked a little bit about your counterpart in Alberta with the $25,000 and $100,00 penalties. Do you think those are reasonable?
    I think they are. When I look at where the lobbying....
    A voice: Up to.
    Mrs. Karen Shepherd: Sorry; up to.
    Thank you for that.
    It depends on the level. If it's of interest to the committee, I'd be pleased to forward the provisions from that particular act. There are details not only in the act but also in the regulations that I think would be quite useful.
    I think it would be good. Perhaps you could forward that to the clerk.
     I will do that. It shows what the different measures and thoughts should be in giving this. I think a $100,000 fine is fairly substantial when I actually look at the current legislation and if it went as a criminal infraction. I mean, we're talking the same kinds of funds, except I would have control, as opposed to having to refer it to another body.
    The other thing that struck me when you were giving your opening remarks was the immunity provision. Could you elaborate on that, please?
    Interestingly, in looking at it, I'm actually the only agent of Parliament right now who doesn't have it in his or her legislation, in terms of my colleagues, but it's just the ability to speak about a file in Parliament or as part of the case. I think Madame Freeman was sort asking if I could talk a little bit more freely. I think there would be a lot more comfort, too, in speaking if the immunity clause were in the legislation, as it is for the Auditor General, for example.
    Okay. And is that common in the other officers of Parliament, as well?
    They have similar degrees of it, yes. I believe in my five-year review there's an attachment with those at the end.
    When you talked a bit in your opening remarks, you said you'd sent six files to the RCMP, tabled three in Parliament, and “three additional reports have been sent to individuals to provide them with an opportunity to present their views as required under the act”. Who did they present their views to? What's required?
    I just want to be clear with the numbers. I've referred six files to the RCMP. I've recently tabled three. Two of those were code of conduct investigations, so those two would never have gone to the Royal Canadian Mounted Police. I just wanted to make sure that's clear.
    In terms of opportunity to present views, the opportunity to present views is with me. And that is actually in the act. In the process that I've put in place to ensure the subjects have sufficient opportunity to present their views, I actually send them the report that I receive from the investigations directorate. They are given 30 days to review the report, and when requested to—one I've just had recently—I grant exemptions if they feel they need more time. And then I'm responsible for tabling a report to Parliament on my facts, findings, and conclusions.
    From the three reports that I tabled, specifically in McSweeney and Stewart, you can see where they reacted to specific sections and arguments in the report, and I reflect that in the report on investigation I tabled to Parliament.
    Okay, thank you.
    There's just one issue I want you to clarify for me, Ms. Shepherd, and this is the controversial issue about code rule 8. It's not my job to carry the debate for the lobbying industry, but we've had a number of complaints and articles written by prominent lobbyists in the Ottawa area who, I should point out, enjoy good reputations and I'm sure would want to follow the rules and would not want to be in violation of any federal statute.
    You say the rule is clear, but when I read your comments here today, I'm not getting clarity. I'll quote. You say “ guidance does not prohibit lobbyists from engaging in political activities”. And in the previous paragraph you state: “ reports to Parliament clearly indicate that helping someone get elected is in his or her private interest and might put the lobbyists in breach of the Code, depending on their lobbying activities”.
    I'm confused at that. I guess you'd be okay if the person didn't get elected. You can be involved in politics, but you can't help anyone get elected.
    Are you totally sure, and can you reassure this committee, that the rule is crystal clear and that these people who are in the industry know exactly what they can do and what they can't do?


     The question becomes...i. It's the intersection of the two. The rule hasn't changed, it's the interpretation that has changed.
    When the court's decision came out in March 2009, it indicated that a conflict of interest is created not only when there's a real conflict of interest, but also an apparent conflict of interest. It also explained that in terms of looking at this conflict of interest in terms of how was the tension created between the public office holder's duty, which is to serve the public good, and a tension that might be created because of a private interest. There's been a lot of focus on political activities, but have they received gifts, have they received other.... The chalet in France for two weeks would be something that if it was in the private interest of the individual could put them in conflict. It's the proportion that they're then....
    So getting someone elected is one example of advancing their private interests. It's the proportion of the degree that they work. In the guidance I provided where I'm saying you can obviously put the sign on the lawn, you can donate according to the political parties, you can attend the fundraising events and the barbecues because, yes, there's an argument that you're advancing the private interest of the individual, but you're not doing so to a higher proportionate degree, it then becomes the intersection of what they're planning to do vis-à-vis the lobbying of the individual.
    The clarifications that I gave on the political activity show a continuum of how things are moving. So if you buy that ticket and attend the fundraiser, it's very different from lobbying heavily the individual or if it happens to be someone who's elected in the government, the minister and their department. I took the same sort of heavy example of where they're doing a lot of lobbying and sort of moved them up and down the scale. There are those, I do believe, who want to be in good stead and there are a number of lobbyists who have indicated--unfortunately not maybe publicly, but I'm getting a lot of comments either from my colleagues or from others--that they are happy with the guidance because it's giving them the freedom to choose which lobbying activities they want to do or which political activities or other avenues they'd like to pursue.
    Thank you very much, Ms. Shepherd.
    The clerk has indicated to me that the bell we're hearing is a vote.
    Is it a 30-minute vote or a 15-minute vote?
    The Clerk of the Committee (Mr. Chad Mariage): A 30-minute vote.
    The Chair: I need unanimous consent. This part of the session is nearly over and the next item on the agenda was to have Minister Day for an hour. I'm at the committee's disposal. We could go and start the session with Mr. Day and then come back and go until 15 minutes before the vote, suspend for the vote, and come back after the vote. Is that okay with everyone?
    Dr. Bennett.
    First, I would just like to say that seeing we've only had an hour with the commissioner, I wanted to know if.... I'm sure she has seen the Democracy Watch questions that were posed on the Democracy Watch website, and I was wondering if she would entertain to answer those questions and post them on her website, in view of the fact that this parliamentary session may finish before we finish this study. It would offer some transparency in terms of obviously the concern of the carry-over from cases with the previous registrar. Also, in this document, I think in December, we asked that it be broken down by department in terms of what are ongoing investigations and would she resubmit and table with the committee all of her investigations broken down by department.
    As you know, Mr. Chair, we are very concerned that as members of Parliament we are--


     There's a point of order.
    Sorry, I hate to go into a speech. I'm not sure if what she's doing is a question or a point of order, but the bells are ringing, so I think per the Standing Orders, the meeting is adjourned.
    I need unanimous consent from the committee. Do I have unanimous consent? No, I do not.
    We can come back after the vote.
    Madame Freeman.


    What exactly do you need unanimous consent for?


    I asked for unanimous consent to continue this meeting until 15 minutes before the vote, but I didn't get it, so that's irrelevant. It's a moot issue. I can suspend until after the vote.
    Because I don't have unanimous consent, I'm going to suspend the meeting and resume after the vote.
    As long as you're suspending right now, I'm good.
    It's very important that we follow parliamentary rules. I don't know why the Liberals are in such contempt of Parliament right now.
    Okay, the meeting is suspended until five minutes after the vote.




     I call the meeting back to order.
     This part of the meeting, colleagues, has been devoted to our ongoing study into open government. As everyone is aware, we're in the final stages of completing an extensive study on the whole concept of open government.
    One of the final witnesses, of course, is the President of the Treasury Board, the Honourable Stockwell Day.
    The committee is very pleased to have you before us today, Minister Day. Thank you very much for coming.
    We did have a delay, and I understand the minister may have to leave at 5:30.
    Is that correct, Minister?
    This will be an abbreviated meeting, but we certainly welcome the minister and thank him for being here. I'm going to turn the floor over now to him, for his opening comments.
    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.


    Thank you, Minister Day.
    I certainly want to thank you for this initiative.
    We don't have too much time left. In fact we have none, really.
    Two minutes, Dr. Bennett, and we'll see how far we get.
    On a point of order, Mr. Chair, is it possible to ensure that the time is divided equally, what limited time there is?
    By the time we deal with your point of order--
    Why don't we just agree to do two, two, two, and two? Is that all right?
    A quick question each. We'll do it that way.
    Minister Day, there was a concern when the CIO was here that the Government of Canada didn't actually have an open government policy. Is this declaration that you have there an actual new policy? You have instated a policy of open government. And when will we have the Prime Minister underline it? Everything we've heard at this committee is that unless the person at the top wants the default position to be open, nothing happens.
    This is clearly government policy, supported by and endorsed by the Prime Minister as the leader of the government.
     I did the public presentation of this on March 17, in two different locations, two days in a row. Clearly, I was competing with other media, understandably so, with the devastating things that were going on in Japan, Libya, and certain things that were taking place here, with a committee already in process.
    So this is a public commitment, endorsed as a matter of policy by our government and of course, it goes without saying, by the Prime Minister.


    Mrs. Freeman, you have time to ask a quick question.
    Why didn't you tell us about all this work you were doing? You let us work. We've been working on open data since April 1st, and we never knew that you were doing this work in parallel. We knew about it from the statements made by Ms. Corinne Charette, which is fairly surprising for a government that claims to be transparent.
    However, I would like to congratulate you, Mr. Day. I know that you are leaving politics, like Mr. Murphy and Mr. Siksay here, to take on something new. I want to wish all three of you the very best.
    So I've taken the time to say that, but I would still like you to answer my question.
    Thank you, Mrs. Freeman, for your kind words. I appreciate them.
    This is a policy we've been working on for a long time now. The data and information from some departments were used for this trial. That's why we are describing this open data portal as a "pilot project". We asked 10 departments to participate and, eventually, we will ask all of government to take part. It's a process that we have begun.
    As for the committee's work, I think that the information commissioner made a comment along these lines at meetings and that the five directives were also mentioned. I announced this initiative publicly a week ago. We are now on track. I would like your advice, not only today, but in the next stages of this portal's development.



     Mr. Siksay, you have time for a brief question.
    Thank you, Chair.
    And thank you for being here, Minister.
    Minister, I know that one disappointment at the launch of your data portal was that one of your validators had some real problems with the licence that is on the website, which is one of the more restrictive licences of open data portals launched by any government. I know there's been some backtracking already on that. It makes me think that this got rushed, that the work hadn't been done.
    Why has Canada opted for a much more restricted licence than the United Kingdom, the United States, and many other municipalities and other jurisdictions here in Canada?
    Mr. Chair, I want to thank my colleague for this question.
    Always, the risk of starting something, especially if you're calling it a pilot but you're also saying it's policy, is that you're going to come upon things you hadn't expected. Being open about that, we're saying this is incremental improvement.
    I think the gentleman you're talking about is David Eaves, from Vancouver, who helped do some analysis and let us know how he thought things were developing. He said very clearly that he was very enthusiastic about the approach, but he pointed out that the licensing agreement had terminology in it that said--and I can give it to you verbatim--basically that nobody could use this, especially media, if it was going to in any way reflect poorly on government. Well, to tell you the truth, we had not analysed that licensing protection in light of a possible media request. It was advice that was given to us by justice lawyers and others to protect against information being released, which then we could have been libellous for.
    I sat down with Mr. Eaves right after that—as a matter of fact, the same day—and he gave us some advice. We looked at what other countries were doing in that regard. We saw that ours was far more restricted, and we ran it by the lawyers, and in the space of about two to three hours we made the decision. Why should we be the most restrictive? Other countries are doing this. We revoked that particular clause, so that impediment is no longer there.
    In fairness also to Mr. Eaves, there are a couple of other things he talked about on the commercial side that I've also said to our legal officials. Other countries seem to be able to handle this; we should be able to also. So we're looking at these other ones, but this was the big one, this restriction on the licensing part. We moved quickly to revoke that.
    Thank you, Mr. Siksay.
    Mr. Poilievre, please make it a brief question.
    Yes, Mr. Chair. This might be the last time I speak before this committee for some time, so allow me to—
    No, Mr. Poilievre, you shouldn't be speculating.
    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!


    Mr. Chair, I'm sorry I have to go. As we said, we'd booked the full hour. We didn't know there'd be a vote. I'm more than willing to come back for another full hour next week.
    But I just want to echo.... My colleagues may not know that the chair and I quite rightly correspond back and forth. We have not always agreed on every item, but I've appreciated the civility with which we've had our disagreements, when there have been those.
    You have always been faithful in taking the concerns from around this table and bringing them to my attention and taken the demands that have followed that. I appreciate the work.
    Bill, it's always good to work with you on issues. Again, democracy is not always about agreeing on everything, but it's certainly allowing the process to move ahead. I wish you the best, not in an electoral way, but certainly as you pursue your dreams for the future.
    Thank you to members of the committee.
     We do need your input on this. This is a new venture for the government. It is off and running. It is a policy, not just a pilot, and I'll look forward to watching this develop.
    Thank you so much.
    There is one final comment from Madame Thi Lac and then we'll adjourn.


    At the start of the meeting, I asked to have a minute to do what several others have done. I took some notes so that I wouldn't forget anything.
    Mr. President of the Treasury Board, Mr. Chair of the committee and, especially, Mr. NDP critic, you have announced that you will not seek another term. Some other members of this committee might not be re-elected either. I would like to say that it has been a great pleasure working with you, on this committee, particularly with my colleague, Mrs. Freeman.
    Thank you, also, to the team supporting us, the analysts, the clerk, the entire support team, the staff members who are here to support our work, meeting after meeting. I want to tell you that it is greatly appreciated.
    Good luck to everyone taking on new challenges.
    I would like to say good luck to everyone who will not have the opportunity to facing the excellent Bloc Québécois candidates in the next election.
    Some hon. members: Oh, oh!
    Mrs. Ève-Mary Thaï Lac: I would like to finish by saying see you next time, not good bye. Mrs. Freeman and I are looking forward to seeing you again in the House.
    Until next time!


    Mr. Chair, I didn't realize that Mr. Abbott is moving on as well. It would have been entirely inappropriate to fail to mention his longstanding contribution.
    That's right. He's been here longer than all of us.
    I think he's been here since 1993, so a hell of a long time.
    Thanks very much to Jim for a hell of a contribution to this country.
    Some hon. members: Hear, hear!
    Mr. Chair, just the briefest of interventions. I owe an apology to the whole committee. I am responsible for hiring Mr. Poilievre and giving him his first job on the Hill, so I apologize to members.
     People have never forgiven you for that, right?
    The meeting is adjourned.
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