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Standing Committee on Access to Information, Privacy and Ethics


NUMBER 024 
l
1st SESSION 
l
41st PARLIAMENT 

EVIDENCE

Thursday, February 16, 2012

[Recorded by Electronic Apparatus]

  (1100)  

[English]

     I call this meeting to order.
     Good morning, everybody. I know we have a couple of people substituting. I want to welcome Mr. Sopuck and Ms. Sims to the committee today. I also want to acknowledge that Mr. Boudria, a former member of Parliament, is in the audience.
    I'd like to welcome our witnesses to meeting number 24 on the statutory review of the Lobbying Act. The witnesses have 10 minutes to present. Our first round of questions from the members is seven minutes, which includes the member's question and your response. I will ask people to keep to their timeframes.
    I will turn it over to you, Mr. Coates. I'm not sure who's presenting, but perhaps you can introduce your co-witness.
     My name is Michael Coates, and I'm the president and CEO of Hill + Knowlton in Canada. With me here today is Elizabeth Roscoe. She's the head of the public affairs practice here in Canada.
    Thank you very much, everybody. It's great to be here. We want to thank you for the opportunity to provide our input into the statutory review of the Lobbying Act. As the industry leader, we are proud of what we do, and we feel it's important to share our perspective about a profession that has not only provided us with an exciting and meaningful career but makes a valuable contribution to public policy.
    We're pleased that during previous hearings this committee and many MPs have acknowledged the contributions lobbyists make to provide you with information that helps you with your jobs.
    We submitted a brief to the committee and will use our time today to provide you with a brief overview of the five recommendations we have to improve the Lobbying Act.
     Hill + Knowlton Strategies has operated in Canada for 30 years. We have grown to 250 professionals and associates located in nine offices across Canada. The public affairs practice at Hill + Knowlton actually makes up just one-third of our business; two-thirds of our business has nothing to do with government whatsoever. Furthermore, we encourage all of our public affairs clients to make representations on their own.
    We also take pride in our employees' high ethical conduct. Those engaged in lobbying—less than one-third of our total workforce—must sign, as a condition of employment, Hill + Knowlton's code of conduct and adhere to the Lobbyists' Code of Conduct and the government relations code of conduct.
    At H+K we believe that lobbying is a fundamental right. It produces more informed public policy decisions and is ultimately in the public interest for citizens and government. In essence, lobbying can be a bridge between business, NGOs, and government. Our consultants provide value, and they are qualified in a variety of policy fields, with many having extensive experience with government as both partisans and permanent officials.
    Social media has been a real game changer. It can influence legislative, regulatory, or policy changes without even requiring a lobby registration. These facts support our fundamental premise that in today's environment there is less emphasis on who you know than on what fact-based information is communicated to inform a decision.
    Our recommendations here today were formulated by our domestic experience, but also with the input of our H+K strategists from Washington, London, and Brussels. Our own findings are consistent with the Commissioner of Lobbying, who recently noted that Canada's lobbying legislation, political financing laws, and conflict of interest rules are clearer and stronger than in most G-8 countries. In terms of transparency and disclosure, Canada's Lobbying Act has stronger provisions than those in place in the U.K., Brussels, or Washington.
    While the 2008 revisions to the Lobbying Act strengthened transparency and accountability, we think its application has fallen short in a couple of respects. Changes are needed to make it more consistent with the preamble of the act and the principle of free and open access to government.
    Our main message here today is that we welcome tougher enforcement, because we want everyone to engage with the same high standards of conduct that we ask of our consultants. With greater powers of enforcement, we also call upon the committee to lighten the regulatory burden of monthly contact reports and move to quarterly updates of registrations, which are more consistent with what we found in other countries.
     Elizabeth will take us through the recommendations.

  (1105)  

     I'd now like to briefly describe our recommendations to the committee.
    Our first recommendation is to amend the act's enforcement powers. During her December 13 appearance, the Commissioner of Lobbying requested that Parliament grant the office additional powers to include an administrative monetary penalty mechanism, the AMP. We recommend that the Commissioner of Lobbying be granted this increased enforcement power, as long as the office identifies and follows judicious due process and the rules are exercised consistently. All registered lobbyists should be held to the same standard.
    Our second recommendation is to delete the designated public office holder carve-out, which has been a consistent theme throughout your hearings. In-house corporate lobbyists affected by the five-year Federal Accountability Act ban are allowed to lobby if they self-determine that they lobby no more than 20% of their time. In our view, this creates confusion for corporations, for organizations, for consultant lobbyists, and frankly, for members of Parliament. Going forward, we recommend that the act be amended to remove the significant part of the duties test for former designated public office holders, thereby clarifying that they could not lobby for the five-year period, as applied to all other designated public office holders.
    Our third recommendation is to clarify the treatment of corporate board members. External officers of a corporation who are members of a board of directors are treated as consultant lobbyists. We recommend that Parliament clarify the treatment of outside directors on commercial boards. They receive remuneration, and some, as part of board responsibilities, are asked to communicate with government in one of the prescribed forms of activity. The outside board members, in our view, should be treated as part of the corporation. This change would align with current corporate governance procedures and disclosure.
    Our fourth recommendation is to delete the requirement for monthly communication reports. In our brief, we point out that, while disclosure and transparency are common objectives for governments in the U.S., the EU, and the U.K., no other jurisdiction requires monthly communication reports. Our brief demonstrates that the monthly OCL communication report is a secondary report that provides no further clarity on the issue or the subject matter than originally identified in the primary registration. In the interest of transparency and efficiency, we recommend that registered lobbyists be required to update the primary return on a quarterly basis to include who they meet with. This recommendation is more consistent with the accepted norms of commercial confidentiality.
     Our fifth recommendation is to affirm registered lobbyists' ability to engage in volunteer political activity. The ability for registered lobbyists to freely participate in political campaigns should be, in our view, clear and unequivocal. Our brief shows that the U.K., the EU, and the U.S. treat lobbying and volunteer political activity very differently from how Canada treats them. Furthermore, unlike the U.S., Canada prohibits corporate donations. We propose that the OCL's Lobbyists' Code of Conduct reflect the same principles found in the Public Service Employment Act, which allows public servants to participate in the political process, similar to all other Canadians.
    In conclusion, we believe, in terms of transparency and disclosure, that Canada's Lobbying Act has stronger provisions than other jurisdictions we work in, and that adjustments are required. We believe our suggested approach—which closes loopholes, provides for greater powers of enforcement, and moves to a quarterly update of registrations— will maintain that transparency, provide consistency, and ultimately strengthen Canada's Lobbying Act.

  (1110)  

     Thank you, Madam Chair.
    We look forward to the discussion with committee members.
    Thank you for that succinct presentation.
    We'll go to

[Translation]

Mr. Dusseault, you have seven minutes.
    Thank you, Madam Chair.
    I want to thank the witnesses for being here today. It is interesting to hear from lobbyists whose involvement in this environment is different from that of other witnesses.
    I read your recommendations and wondered whether you in fact agreed with the five-year waiting period. My understanding is that public office holders would all be subject to the same five-year rule.

[English]

    Thank you very much for that question.
     Madam Chair, from our perspective, we don't take a position on the five-year rule. It's up to the government to decide how it wants to regulate the activities of people in the government. We will work with whatever regulation the government comes up with.

[Translation]

    Do you think that the five-year waiting period is sufficient? Do you think it works well? Should public office holders be subject to that rule? Do you have an opinion on that?

[English]

    It's a very tough standard, but again, it's not something that Hill + Knowlton feels is an issue with regard to the way it conducts its business.

[Translation]

    You say you would like the 20% rule to be removed. Could you tell me what you think about that time limitation? Do you feel that removing the limitation would be beneficial and contribute to the transparency of the Lobbying Act?

[English]

    Thank you for the question.
    As you can see in our brief, with regard to the 20%, we think the same rules should apply to all consultant, corporate, or organizational lobbyists. I think earlier this week the commissioner, the Government Relations Institute, the Public Affairs Association, and even the Canadian Bar Association made reference to this not being consistently applied. Therefore, when individuals are lobbying members of Parliament or government officials, it is not clear who they are dealing with.
    We believe that a change going forward to delete this carve-out would create a consistent group of individuals on the designated public office holder side.

[Translation]

    In the same vein, I would like to know where you would draw the line in the case of, for instance, my 100,000 constituents who would occasionally like to see me and talk to me. The same goes for all the MPs' constituents. Should they register under the Lobbying Act every time they meet with their MP? Would that apply only to those who are being paid? How do you see that?

[English]

    Certainly that is part of the definition, that you have to be paid to be considered a lobbyist.
     I should be clear. We are not suggesting changing the significant time. We're only suggesting that the carve-out be deleted for designated public office holders. Many of your constituents will not be undertaking lobbying for any more than perhaps 10% of their time. We're not suggesting that they should be affected by this change. It's only those who are designated public office holders.

  (1115)  

[Translation]

    In another one of your recommendations, you suggest that the commissioner be granted much greater powers. I agree with giving the commissioner at least the power to impose financial penalties.
    How heavy do you think the fines should be? Do you agree with me that applying such penalties could encourage lobbyists to comply with the act or at least to register?

[English]

    This is our essential message, Madam Chair.
    We think enforcement is key here, not only enforcement of the act overall, but also of the code of conduct.
    There are cases in which the Commissioner of Lobbying has taken quite a bit of time to get back to people she may be looking at who have potentially infringed upon the code. We think that if she had additional administrative monetary penalties, perhaps that timeframe would be shortened and we'd get more expeditious justice.

[Translation]

    The power to impose monetary penalities is being discussed. Have you also considered the possibility of granting the commissioner the power to investigate?
    Currently, when a case requires investigation, it is transferred to the RCMP. The commissioner has no investigative powers. Do you feel that would be something to consider, given that the RCMP has never followed up, in any of the cases? Do you think that the commissioner could have the jurisdiction to conduct those investigations?

[English]

     Yes, we've heard that this is one of the additional powers she's seeking. We defer to the parliamentarians at the table to understand whether that expansion of investigative powers is required. What we've asked for, if you deem that both the investigative powers and the AMP are going to be added to the office, is that judicious process be applied, that individuals—and I think you've heard other witnesses ask for the opportunity to be informed that they are being investigated—have due process and the opportunity to seek counsel, if that investigation is undertaken.

[Translation]

    Okay, thanks.
    You have 10 seconds left.
    That's fine, thank you.
    Thank you very much.
    Mr. Del Mastro, you have seven minutes.

[English]

     Thank you very much.
    And thank you to the witnesses for their presentation, for their brief.
    I'd like at the outset to comment on one of the things you said initially, which the committee has recognized: that folks working in government relations do valuable work in many cases. I think the committee has also recognized that it's a democratic right. As such, I'd like to think that we've moved forward in a very positive fashion on an act that many witnesses have commented on, saying that largely it's working and is achieving the objective that was set out.
    In this statutory review, we're looking at how we can make it better and improve transparency. So I thank you for your very constructive comments in that regard.
    I'll start off with a couple of things. First of all, you recommend deleting the requirement for monthly communications. We've had witnesses suggest that this takes a few minutes. To me, it seems that this specific requirement is providing the kind of transparency that Canadians want to see. They want to know, when government makes a decision, who may have been talking to government—whom the government consulted, in some cases. Often the government is asked, “Who did you consult with?”
    As you are a group that represents many of the stakeholders that you would like to see consulted on significant pieces of legislation, I think it's important that we are in fact having that pushed out and saying, okay, these groups did in fact meet with these individuals—members of Parliament from all parties, what have you—in the lead-up to this bill or after a bill was introduced.
    I think this is the kind of transparency that Canadians want. We've been told that it isn't excessively burdensome.
    Why would you like to see this requirement removed?

  (1120)  

    Thank you for that question.
    Madam Chair, the additional burden, from a regulatory standpoint, is not a lot. Here's the issue, as I see it. If you look at the preamble of the act, you are looking for a system in which the registration of paid lobbyists does not impede free and open access to government, and you have to finely balance that. There was a time when we used to send our clients in very early when there was a transaction of some type—perhaps a merger or an acquisition—or when a client of ours wanted to change a regulation or policy. We're reluctant to do that now, because these reports are taking place in almost real time. We know that competitors of our clients are tracking all of these registrations. They're, in a sense, acquiring information about the private strategies of our clients.
    In fact, we've seen a pullback, both in our advice and in the interests of our clients, in actually wanting to talk to government as much before a number of these decisions are taken. If you go into a quarterly review.... I have to tell you, I don't like contact reports; I tell you that right now. But if you have to have contact reports, I'd just as soon they be done on a quarterly basis, so that at least it's not taking place in real time.
     With due respect, I'd simply argue back that I know there are those out there, like Duff Conacher, who'd say that's exactly why we have the monthly reports, because we want to know what the strategies are, what's behind some of the efforts taking place on the Hill. That's why there's value in them. I'll just say that and move on.
    We've heard about the carve-out for designated public office holders—the 20% rule—from a number of folks. Did you look at the classification for designated public office holders? We've had many groups come in and suggest that not all designated public office holders are equal, with respect to how the restriction should apply.
    Did you look at that at all? Did you consider that, or is it something that you left for the committee to determine in its review?
    We defer to the committee for those classifications. You're best able to determine whether it's applicable to all levels within either a minister's office or a member of Parliament's office.
    Okay, I'll get together with Mr. Dusseault, and we'll figure this out together.
    Thanks.
    Rule 8 says to clarify the rights of registered lobbyists to participate as volunteers in election campaigns. What I seem to be hearing is, “Can you please just tell us what's acceptable and what isn't?” Many people I've talked to who happen to work in GR are saying to me, “Listen, before I worked in GR, this is what I did, this is who I am. I didn't think I sacrificed that when I registered.”
    Now they're hearing that maybe they did. Where would you like to see that line drawn? It's one thing to say to clarify it, but you must have an opinion on where you would like to see it clarified. Would you like us to clarify that anybody who's a registered lobbyist can't work on any campaigns, can't be involved with any elected representatives, has to come out and cleanse himself publicly of ever having had a political affiliation, or are you suggesting that another kind of line be drawn?
    Of course, the other extreme is that they hire them because they happened to have a connection to the NDP, the Liberals, or the Conservatives, and that's why they were hired, and everyone knows that, so there's no point in trying to pretend otherwise.
    Where do you want that line drawn?
    Madam Chair, to me, Canadians are Canadians.
    I don't know how you can take democratic rights away from one group of people. I feel strongly about this. I've worked in the political sphere all my life, and the toughest thing I had to do was to withdraw from the last campaign because of rule 8. I object to that. I have a right to be able to work on behalf of a political party.
    Okay, so I'm getting on, and maybe campaigning has passed me by, but think about all these young people coming up in our profession. Why shouldn't they be able to run a campaign or take part in a national campaign? What a tremendous experience they'd be gaining. I just want us to be treated like everyone else.

  (1125)  

    Thank you, Mr. Coates. The time is up.
    Ms. Roscoe, make your comment very brief, please.
    Just to situate what kind of affirmation we're looking for, we would like to see at least the level of clarity afforded to the public service through the Public Service Employment Act.
     I wouldn't sell yourself short, Mr. Coates. I'm sure you can still work for—
    Mr. Del Mastro, your time is up.
    Mr. Andrews.
    Thank you, Madam Chair.
    Welcome to the witnesses today.
    I think you support administering the monetary penalties portion of this. What levels of administrative penalties would you recommend the commissioner have, and within what range? I know there's been talk of 25,000 different jurisdictions. Have you given any consideration to the range of administrative penalties for particular breaches?
    We haven't categorized them except to say they should be tough. Make them tough. They have to be tough enough so that people understand there's a price to be paid if they break the code or, worse, break the law.
     Okay.
    What about an appeal mechanism? We've had some discussion on whether there should be an appeal mechanism. I know that one of the commissioners who was here said their appeal mechanism is to send it right to the courts. They let the courts decide on the appeal. Do you see the need for an appeal mechanism within the commissioner's office? Or do you think that once the commission has decided the penalty, and people want to appeal, they should apply right to the courts?
    Our view, and I think we spoke to this at the outset, is that there needs to be a clear process set out in terms of both investigative powers and an appeal process, which most other AMPs actually have. Anyone being investigated will know that they're going to have a judicious process that will be followed.
    Okay.
    On monthly reporting, in your last exchange with Mr. Del Mastro, you mentioned the protection of your clients. Instead of weakening the monthly reporting, could we put in a provision that would give some sort of commercial sensitivity to the particular report to help protect your clients if it's commercially sensitive in nature? Is there something we could do there instead?
    Who would define that commercial sensitivity? If it's self-defined, then five years from now you'd be wanting to tighten up that provision. I just think it's easier and corrects the problem I've identified if you do that type of contact report quarterly.
    You're recommending 20% for DPOHs. Why wouldn't you recommend or support getting rid of the 20% altogether, for clarity purposes?
    It is for the exact reason raised earlier. There may be individuals from your constituency, from corporations, from small businesses, and from not-for-profit organizations that undertake lobbying for less than 10% of their time. For that reason, they need to have some guidance. That's what the 20% is about.
    Our specific recommendation deals only with those individuals deemed to be designated public office holders for corporate lobbying. It has created, in essence, two different varieties of lobbyists. We think that if you're on the receiving end of many requests, many calls, it would be clearer for all.

  (1130)  

    We've heard testimony and argument that if someone spends only 5% of the time lobbying but gets great reward in a contract that's awarded, that wouldn't be captured. How do you justify it for someone who does very little lobbying, but the reward for the company or the business is tremendous? How would you try to identify that?
    Again, we're guided by the fact that if individuals, organizations, or corporations are not using a lobbying technique more than 20% of the time, then you would also think, as you say, that the issue they're dealing with isn't going to be that material to them.
    The committee chose, or Parliament chose, to use 20% during the review of the FAA some years ago.
    I have one last question for you, Mr. Coates.
     This is more for an understanding of the business of government relations. In your brief, you said that you're a government relations firm. How do you distinguish between government relations and lobbying? From what we've seen or from testimony we've heard, you can do government relations business and never actually lobby. But a former DPOH might have great influence in giving a company advice, and that will never be captured.
    Do you see the need to try to capture that or the difference between government relations and lobbying?
    Let me be clear. Hill + Knowlton does both. We are registered lobbyists, and we provide advice and counsel. I think with the way the act is currently defined, the focus on actual communication with the public office holder is fine. If you start going down the path to broaden the definition beyond that, I think you're going to capture so many people it'll be meaningless.
     Thank you very much.
    Thanks, Mr. Andrews.
    With the committee's permission, I want to follow up on something Mr. Andrews asked about the monthly reporting. One of the previous witnesses proposed that the commissioner rather than the lobbyist would determine if there was an exception, so they could submit their monthly report but with a request to the commissioner that they delay publishing the results on sensitive information.
    Do you have an opinion on that?
    Yes, I think there should be quarterly reports.
    Great.
    Mr. Mayes, you have seven minutes.
    Thank you, Chair, and thank you to the witnesses for being here today.
     I read your brief this morning. You make a comment about the global trends in lobbying regulation, and I quote:
Canada’s lobbying legislation, Political Financing Laws and Conflict of Interest Rules are clear and stronger than most other G-8 countries. The Commissioner of Lobbying affirmed this view on December 13th when she appeared before the committee. The Commissioner noted that Canada’s rules were strong, even compared to the US.
    In light of this statement, would you say we've gone overboard, that because of those strong laws your opportunity to access government for the purpose of lobbying for various issues is encumbered?
    Thank you for that question.
     No, I don't think it has encumbered it in any way. I think the monthly reports are overkill, and I've tried to explain why, but on balance I've got to say I'm very proud of the system we have in place. It's a very good system. I can tell you it's head and shoulders above the United States' system. If we have to live with these monthly reports, we will, but I think an improvement would be to go to a quarterly report. From a “fix it” standpoint, that's a key one for me, and of course the recommendation on the 20% carve-out.
    There has also been a discussion that public office holders should have to put in a monthly report too, and I can understand what you're saying, but there have to be some checks and balances. It's obvious.
    On that point, I go back to the preamble to the act. Do we want a system that impedes the free and open access to government? How would you feel about doing all those registrations each month? Would that make you less likely to see people? It might.

  (1135)  

    I was interested in your comments about the five-year rule for former public officer holders. We have had witnesses here who have suggested that this is too long and that in many other countries the period is shorter. I'm curious about that. When I finish here, I will probably have 20 years in, not just here but in other offices I've held, and I feel I've gained a lot of knowledge and I think it's valuable to other people who are dealing with government. I'm wondering if five years goes a little overboard, that there should be an opportunity for people such as me, when I'm finished here, to be able to share some of the experience and knowledge I have gleaned from the years of service.
    People in public life pay a price, for sure, for being in public life, and this particular government has set a high standard, a high bar. Five years is a long time, but all the knowledge that you have gained can still be put to good use, even though you cannot lobby or communicate to public office holders.
    We have hired people out of government who we make absolutely sure do not lobby, but they do provide advice and counsel to our clients because of all the knowledge they've gathered over time.
    In your sector, as far as a lobbyist consulting firm is concerned, do you think the definition of what you do is a little more cumbersome on you?
    Take unions, for instance. They're very active politically during elections, and it's obvious they have a reason for that. They're trying to influence or get an advantage for unionized labour, and they're also looking for financial benefits for their membership. I feel this is lobbying. I almost feel that it's of greater concern than having lobbyists such as your company that would maybe not have as big an influence on a party as a union might.
    Do you feel the restrictions are tougher on you than they are on some of the other people who want to express their support for political parties?
     I think you may be referring to a private member's bill that's been put forward. We haven't looked at the specifics of that issue. Transparency is the cornerstone behind the Federal Accountability Act, so we would see that it needs to be carried forward as well to other acts.
    The other thing for me as a backbencher rather than a cabinet minister is I feel that access to me is not as critical as maybe access to a cabinet minister for decision-making. That was something that was brought up, and maybe those who are not in the cabinet position, or parliamentary secretary, would have a different restriction on the reporting and also the term that you have to wait for an opportunity to work as a lobbyist.
    Do you have any comments on that?
    My only comment is that the amendment that included the broader category really was intended to provide clarity for all members of Parliament, because they can influence an outcome of a decision. If you were going to rethink that, we'd certainly be able to help you with some of the thinking, but as far as we are aware, that's not under consideration at this point.
    I appreciate your suggestions. I think they're very valuable for the committee. Thank you for them.
    Thank you, Mr. Mayes.

[Translation]

    Mr. Morin, you have five minutes.
    Thank you, Madam Chair.
    Mr. Coates, following my colleague Mr. Del Mastro's question, you asked that you, as a Canadian citizen, be allowed to campaign for a political party.
    Let's say you were participating in fundraising activities and managed to raise $80,000 for a candidate or a party. Once the election was over, you went back to lobbying. You would have established your own ties to the newly elected member. Don't you feel that could create ethical issues?
    I would like to know what you think about that. I see a clear conflict of interest there, since you would not be a simple campaigner as would an elderly woman in my constituency who makes phone calls.

  (1140)  

[English]

    It's a good question.
    Both the previous Liberal government and this Conservative government made very significant changes to the ability to fundraise with corporations and other institutions. They put great limits on what those donations can be. I think it's $1,000. You're not going to influence anybody for $1,000. In the United States this is a major problem. There's no question about that. Due to reforms the government has put in place in this country, lobbyists don't go out and raise $80,000 anymore to contribute to political parties. Years ago they did. I can tell you I was on the board of the PC Canada Fund and I did in fact have to raise money. I never got $80,000, but I got $20,000 or $30,000. I'll also tell you this: I never saw an instance, ever, where that money influenced anything.

[Translation]

    Thank you for your answer.
    I want to congratulate you on making The Hill Times' top 100 lobbyists list in 2010. That makes you a very influential man and brings me to another topic.
    On September 6, 2011, when Alberta's legislation on lobbyists was being studied, you were used as an example. Your name is in the records. You are registered as your firm's lobbyist. However, you are not the one who engages in the lobbying activities. Other people do that.
    You are the face of lobbying for your firm, but the lobbying is actually conducted by many other people whose identity is unknown. Don't you think that is a problem? Don't you feel that all lobbyists in the field who have personal relationships with elected members should be registered? Don't you think that would help enhance the transparency of the Lobbying Act?
    What is your take on that?

[English]

     Oh, I agree. I agree completely. I think the province you're referring to is Alberta. I would be treated much the same way that a corporation head would be treated here at the federal level. One of the recommendations that I think the CBA made is in fact that the individuals who are doing the lobbying should be the ones registered.
    I would agree with that.

[Translation]

    Thank you.
    Ms. Roscoe, a little earlier, my colleague Pierre-Luc Dusseault asked what you thought about the regulations on the five-year lobbying ban. You know what I am talking about. You refused to answer as an individual and as a professional. However, a few weeks before those regulations came into force, you were part of the wave of employees who left the Office of the Prime Minister to work as lobbyists. I think that your actions speak louder than your words.
    So I put the question to you again. What do you really think about the five-year rule?

[English]

    Thank you for the question and for the opportunity.
     Just as a point of clarity, I was one of the first affected by the five-year lobbying ban. I served two weeks as a volunteer for the Prime Minister's transition team. I was not an employee of the Prime Minister's Office. That needs to be clarified.
    Because the amendment was brought in to actually capture all members of that current transition team and any others that would go forward, I adhered to the five-year provision whereby I was prohibited from lobbying for that entire period, which expired, actually, in February 2011. That is now complete, so I can now be a registered lobbyist.
    So through that five-year period, I, like you, Mr. Mayes, was able to bring my counsel and understanding of government—which had been many years prior to that—and to provide, to both the clients and the individuals I was working with, advice on government, how to position their relationship, and how to go forward with their requests to government.

  (1145)  

    Thank you, Ms. Roscoe.
     Your time is up, Monsieur Morin.
    Mr. Carmichael, for five minutes.
    Thank you, Madam Chair.
    Thank you to our witnesses.
    I wonder if we could spend just a couple of minutes going a little deeper on your fourth point on clarifying the treatment for boards of directors. We know that in the last, oh, 10 years anyway, with Sarbanes–Oxley in the U.S., and a lot of the board of governance changes in Canada, we've seen tremendous education and development for professional directors, the establishment of risk, and a better understanding of what they're doing and what their responsibilities are when they take on corporate board positions specifically.
    I'm wondering if you could just talk a little further about applying the lobbyist designation to corporate board members and the benefit of it. That's number one. I think I'm pretty clear on the definition issues. But does it provide or create any further deterrent for those who seek out being a corporate director?
     Right now, under board governance rules, I know there is a tremendous reticence as far as jumping into the corporate board world is concerned, based on risk and on a number of different questions, for which we have all come under scrutiny in the past 10 years. I wonder if this just adds to that or if it's strictly a clarification. How would you go a little deeper on that?
    Thank you for that question.
    I think it might help. Remember, when you accept a board position, your fiduciary responsibility is to that corporation. Right now, a member of the board is treated like a consultant lobbyist. Now, I think consultant lobbyists are great people—
    Voices: Oh, oh!
    Mr. Michael Coates: —but that's not really where.... Their fiduciary responsibilities are to that corporation, so I think this might make them less concerned if they are asked to take part in conversations with the government on behalf of that corporation. They'd be properly designated as directors of the corporation and not as consultant lobbyists.
    I do actually agree with you on that. I think it's important.
    From the perspective of the Lobbying Act, and since the Lobbying Act has been put into place, what has happened to the industry? Have we seen more lobbyists, have we seen growth in your industry because of the regulations, or has it made it more difficult to get into the industry? What's happened, as a rule, across the board?
    That's a good question.
    I'd say it has made it more difficult to get into the industry. But on the other hand, for those people who are established, it's probably been a benefit.
    The one other thing, if I could add, is that it has expanded people's capabilities around communication, and we talked a little bit about social media. So many individuals who might have been practitioners or thought they were going to be involved in lobbying have broadened their skill set to other communications activities.
    As Mike mentioned, we're more than a lobbying firm. We're very much into strategic communications and marketing and communications as well.
    Madam Chair, I've been around long enough to see these trends. When I started out in the industry, practically nobody lobbied. Then we went to a situation where everybody felt they had to lobby. Now we're pulling back to where there's advice, counsel, and people who lobby.
    We stand by the comments we made earlier on here. Our clients really are their best lobbyist. There are situations when we go in to help them, particularly if it's a foreign company, for example, and they don't understand the rules, the process, the people. But, on balance, if they're a Canadian company of some size, they have their own people who can do this type of thing.

  (1150)  

    Do I have another minute?
    You have 45 seconds.
    Perfect.
    With regard to the monetary penalties, I wonder if you have any thoughts. In our last meeting we had quite a bit of discussion about the range of penalties that might be imposed from both sides, obviously at different levels. I wonder if you have any thoughts, as far as guidelines are concerned, that you would advise us to consider.
    Tough.
    Just make them tough. Don't make them like a traffic ticket. They have to be tough enough that it hurts them where it counts if they break rules.
    Pay attention.
    There's enough innuendo about our industry. We want these rules toughened up so that everybody takes them very seriously. It's in our interest, the people who are in our profession, that the penalties be serious.
    Thank you, Mr. Carmichael.
    I'm not going to start another round because we don't have time to complete it.
    I want to thank the witnesses very much for coming before the committee, and I thank the members for their questions.
    We will suspend for five minutes to allow us to change to the next round of witnesses.
    Thank you.

    


    

  (1155)  

     I want to welcome the commissioner and staff back to the committee.
     I understand, Commissioner, you have a brief statement. Then we will turn it over to committee members for questions.
    Thank you.

[Translation]

    Madam Chair, members of the committee, good morning.
    I am joined by René Leblanc, Deputy Commissioner, and Bruce Bergen, Senior Counsel.

[English]

    I have followed the testimony on the legislative review of the Lobbying Act, and I am pleased to be here today to answer any questions the committee members may have.
    That is short and sweet. Thank you, Commissioner.
    I want to welcome Mr. Dykstra to the committee, filling in for Mr. Del Mastro.

[Translation]

    I yield the floor to Mr. Dusseault, who has seven minutes.
    Thank you, Madam Chair.
    Ms. Shepherd, thank you for your brief comments. However, I think it would be interesting to hear your response to the recommendations made by witnesses who have appeared before us. It would surely be very informative.
    I would like to begin by going back to what the previous witness said about partisan activities. He seemed to be saying that people who raise $15,000 or $30,000 for a political party and then become lobbyists or resume their jobs as lobbyists would not be in a conflict of interest situation because they would have no influence, even if they had raised a significant amount of money for a candidate during an election.
    Based on your experience, and as the Commissioner of Lobbying, what do you think about lobbyists raising money for candidates? Do you agree with the witness's suggestion not to regulate partisan activities?
    There is a code of conduct for lobbyists. When interpreting that code of conduct, I try to determine not only whether there truly was a conflict of interest, but also whether there was a perceived conflict of interest. That approach is in line with the directives issued by the Federal Court, which clearly indicated that genuine conflicts of interest were unacceptable and that it was important there be no perceived conflict of interest.
    For instance, if an individual was trying to raise $20 million and was then going to do lobbying, we would have a problem. According to the Federal Court and my own interpretation, such activities would be negatively perceived.

  (1200)  

    Of course, it's always a matter of perception. Canadians' cynicism toward politicians is exacerbated by such incidents. In other words, a conflict of interest is perceived even if it does not exist. Such a perception is damaging to politics and our democracy.
    Do you think that partisan activities should be regulated and monitored, or should we leave that to the lobbyists' discretion? Is there a system that could be used to monitor all those activities?
    I have already pointed out before this committee that I do not look into political activities. My mandate is to focus on what happens when political activities and lobbying overlap.
    When I examine a situation, all kinds of activities may be acceptable, but the concern arises when an individual decides to lobby or continues lobbying a public office holder.
    I would like to continue in the same vein. This concerns informal meetings.
    Several witnesses have told us what they thought about these kinds of meetings, which were often held in specific locations and were more socially motivated. However, certain cases may have been discussed in lobbyists' presence. Ministers or public office holders were also present. In-depth discussions on cases may have been held, and lobbyists may have tried to influence decisions. Since the meetings were of a social nature and were not pre-arranged, the lobbyists involved did not report them. The act stipulates that communications should be pre-arranged. Do you think the act should be amended to include those types of meetings? I feel that some influence could be exercised during those get-togethers.
    Those types of social meetings must already be registered. However, in one of my nine recommendations, I suggested removing the word “arranged”. Lobbying may take place even if the meeting is not pre-arranged. For the sake of greater transparency—which is the objective of the act—I suggest that those meetings be included in the monthly report, with their exact dates.
    Do you think that public office holders should also bear some of the responsibility when it comes to reporting those kinds of meetings?
    The act and the code of conduct impose obligations on lobbyists, who must report their activities. Imposing obligations on public office holders would change the act's objective. I think that educating public office holders and designated persons—as I am doing—is enough to ensure that those meetings are being registered. A communication verification is done every month. In addition, the letter we send to designated public office holders does not only ask them to confirm that clients are registered. They should also report any other meetings or concerns about anything else not on the list. Public office holders can ask us questions so that we can ensure a follow-up.
    In addition, when I meet with designated public office holders to educate them, many of them tell me about their experiences. For instance, they may tell me that they call lobbyists to let them know that they did not register a specific meeting. They do that proactively and check every month which meetings are registered.

  (1205)  

     Thank you, Mr. Dusseault.

[English]

     Thank you, Commissioner.
    Mrs. Davidson is next for seven minutes.
    Thanks very much, Madam Chair.
    Welcome, Commissioner and your colleagues. It's good to see you back again.
    As you know, we've been having a pretty interesting study. We've heard a lot of testimony from a lot of different areas and interests. We've been getting some really good recommendations and a broad spectrum of recommendations.
    A couple of our witnesses talked about the confusion between the Conflict of Interest Act and the Lobbying Act in terms of the cooling-off period. The bar association actually suggested that either the Conflict of Interest Act or the Lobbying Act—but not both—should be used to enforce that stipulated time.
    Could you comment on that, please?
    They are different acts focusing on different aspects, but as far as the five-year prohibition on lobbying, it really ends up with me to enforce it. There is an argument that if you're looking at the five-year prohibition, it probably rests with one body. I suggest that the body responsible for the lobbying is the one that would be responsible for it.
     Thank you.
    We've certainly heard a tremendous amount about rule 8. I think just about everybody who has given testimony has talked about it in one way, shape, or another. Could you just clarify for us how your office is applying rule 8 now, and what changes, if any, you'd like to see in rule 8?
    Rule 8 talks about placing a public officer holder in a conflict of interest. As I was mentioning to the other member, how conflict of interest was to be interpreted came from the Federal Court case, which was Democracy Watch versus Barry Campbell, in that it introduced the notion of attention being created between the public office holder's duty to serve their public good and the obligation that might be created with the private interest. And you've probably heard that again this morning, in terms of the government relations folks or others who want to exercise their democratic right on the political activity front. That's only one example that is actually in that rule. It talks about placing and giving a gift. It may place a member in a conflict of interest when lending money. The political activity has tended to be the one that's been getting the most focus.
    In developing the guidance that's out there, we considered the conflict of interest definition that exists in the other act. We also looked at the Public Service Employment Act. I was also having to be guided quite strongly by the court case, which gave pretty clear direction as to how conflict of interest was to be interpreted.
    I feel the guidance is sufficient in allowing individuals to make choices. With the reports I've tabled to Parliament, there are also tools now that show how we will examine that conflict of interest. For example, in the two that I tabled, it talks about the effort and the proportion that is put in advancing the public office holder's private interest and the degree of intersection in terms of the lobbying they are actually doing.
    In my mind, the guidance is sufficient. The tools are over there. From those coming forward, I have heard positive comments that the guidance has allowed lobbyists to arrange their affairs accordingly. Unfortunately, I have also heard from others that they don't like it, but they respect the fact of where the decisions come out. So I would leave it the way it is.

  (1210)  

    Okay.
    One of the other things that I think we heard about from almost everyone was the 20% rule. A lot of people felt it just created a tremendous amount of confusion. Others felt that it was not as fair to some as it was to others. Is there a better way to define this amount or this rule? Or is the only option to either keep it at the 20% or to get rid of it? Is there another way to handle this?
    One of my recommendations—actually, the first recommendation—was to remove the 20%. It's not capturing all of those who are coming forward and doing lobbying. It allows corporations or organizations to determine they are not hitting a threshold. If they do not hit the threshold, not only do they not register, but they are not filing the monthly communication reports either.
    So just do away with it?
    That's my recommendation, along with maybe looking at possible exemptions, like unpaid...or citizens who are coming to see you once a year. But limit the exemptions.
    When we talked about the administrative monetary penalties with witnesses who were before us, a lot of people supported that. Some did not. Some of the questions that came up were as follows. What would be the minimums and the maximums? And how would an appeal process work with the AMP, or would there be an appeal process?
     Do you have comments on that?
     I can take the question in two parts. In terms of the amounts—and I've said this before to the committee—I would see that having a maximum of $25,000 would make sense, especially if the option to refer this very serious transgression, for repeat offenders or something, to the RCMP still existed in the equation.
    In terms of the appeal process, when I determine a breach, I am acting as an administrative tribunal. This is something I take quite seriously with regard to ensuring that my decisions are fair and efficient and that they respect natural justice. Under the act, on the investigation side, before finding a breach of the code and tabling a report to Parliament, I am required to offer the individual an opportunity to present their views. I could just provide arguments, but in fairness, I provide a complete investigative report. I also allow them 30 days, and extensions are granted.
    Under the act, there is no exemption from the review of the five-year prohibition, yet I put the same process in place.
    Commissioner, could I ask you to wrap up?
    Thanks. The time is up.
    I'm sorry.
    For the review appeal process regarding AMPs, I would see having a redetermination within the office that would be similar and the court maybe being another alternative.
    Thank you, Mrs. Davidson.
    We'll go to Mr. Andrews for seven minutes.
    Thank you very much.
    Welcome back, Madam Commissioner.
    First of all, you followed the testimony. Are there any recommendations from any of the people who have presented before this committee that you would add to your list of recommendations? I know a lot of them are similar, but was there anything that stood out to you that would be worthy of our consideration, outside of your nine recommendations?
    Yes, Madam Chair, there was one, which I believe came up with the Canadian Bar Association. I was able to hear some of the testimony before coming in this morning. I believe the same recommendation came up that boards of directors, organizations, and corporations actually be included as in-house employees. I would support that. I'm not sure whether this was in the recommendations specifically, but I would say it should be whether they are paid or unpaid.
    Would you see any need to modify any of your recommendations in light of the testimony you've heard?

  (1215)  

    No. I've heard different things in the testimony—some were for it and some expressed concerns—but my nine recommendations that I stand behind are based on my experience with the act during the last five years.
    We had Duff Conacher from Democracy Watch in talking about a sliding scale over five years. Do you see any merit in us looking at that particular provision?
    The five-year prohibition, as you've heard from others, is the longest, not only in this country but actually in any country in the OECD that has lobbying legislation. That said, my experience in administering the act is that I've received only 20 applications; I've granted five, and I've denied, I believe, six. There have been no challenges to these.
    When you're looking at who's captured in the five-year prohibition...a sliding scale is one avenue, but right now students who are actually hired and are working in ministers' offices and who may go into leaders' and members'...who are hired under section 128 of the Public Service Employment Act are captured. I guess the question is, are these the types of individuals that the five-year prohibition was meant to capture?
    Going back, I think the Canadian Bar Association testimony was really good. One of the recommendations they mentioned, which Madam Davidson mentioned earlier, was that the Conflict of Interest Commissioner and your particular responsibilities under DPOHs be combined under one authority. So your responsibilities and those of the Conflict of Interest and Ethics Commissioner would all be streamlined into one single authority. I thought that had some very good merit, to try to have some consistency on both fronts. Do you see merit in that as well?
    The two acts, the responsibilities, were together at one point. Parliament made a very conscious decision to separate the two offices, so now the statutes we're looking at are quite different. What I heard was more in relation to maybe synchronizing the five-year prohibition—
     Yes, for DPOHs.
    There might be some merit in trying to do that.
    Okay.
    We heard that some lobbyists were under investigation by your office and they never knew they were under investigation. You heard that testimony. Is that accurate? Do you care to respond to that type of accusation?
    The act requires that I do investigations in private. The one example that was referred to was that someone had been under investigation for seven years. I've only been in charge of the office since the office was created in 2008. What happened was that certain files had been transferred to the office, so there were 40 files that I actually inherited.
    With regard to letting the person know—and I believe you heard that from my colleagues—they don't necessarily need to know at the beginning of a process, but at some point it is natural justice that before determining a breach, they have an opportunity to either present facts or—
    What stage of the process would you notify them they are under investigation?
    It might depend.... If I need to contact the individual to gain facts, then I would contact them as part of the interview stage, whether at the administrative review or an investigation. If I have reasonable grounds before even interviewing an individual to send the file to the RCMP, as I'm required to do now, then I would do so.
    But before finding a breach of a code in those situations where I've continued on, I would look at ensuring the individual is given an opportunity—and I'm required to do so by legislation—to present his or her views. In the eight reports that I've tabled to Parliament, you actually see where they have been given that right.
    With respect to the RCMP, do you think this committee should have the RCMP come in to answer some questions regarding their aspect of involvement in the lobbyist legislation?
    I previously answered that when I came before the committee in December, and my opinion hasn't changed.
    It hasn't changed.
    Getting back to the Canadian Bar Association...I know we talked about it at the beginning, but I want to come back to their recommendation that all board members be disclosed. They also mentioned elimination of the distinction between in-house lobbyists for corporations and in-house lobbyists for organizations.
    Does that dovetail with one of your recommendations, or does that go a little further? I can't recall.

  (1220)  

    I'm just trying to recollect where they said to get rid of that.
    Was that in the 20%?
    It was in their summary of recommendations. They had eight there, and the first one was to eliminate the distinction between in-house lobbyists in corporations and in-house lobbyists in organizations.
    I think it was listing them all—
     If I could comment, my recollection is that that was in relation to the five-year prohibition on lobbying. Someone who is subject to the five-year prohibition may in fact work for a corporation as an in-house lobbyist provided their lobbying activities do not reach that significant part of duties threshold, which we have called 20%.
    Okay, and the other one we talked about was the corporations. The one here that they said went further was to ensure that monthly communication reports contain the names of all in-house lobbyists who attend oral or pre-arranged meetings.
    Does that go beyond your recommendation?
    What they did, I believe, was in addition to listing all of the in-house lobbyists who are present, they suggested that all of the public office holders who are present at the meeting be listed as well.
    The first half of that equation, listing all of the in-house, is consistent with what I have recommended and what others have presented. The public office holders are different.
    Thank you.
    Thank you, Mr. Andrews.
    Thank you, Commissioner.
    Mr. Calkins, for seven minutes.
    Thank you, Madam Chair.
    It's great to have the commissioner back. I appreciate that you get to bat cleanup here. You've had an opportunity to present to us before to give us your insights and we have your recommendations in front of us.
    We've bounced some of those recommendations off various interest groups, whether they be lobbyists, the Canadian Bar Association, and others—university professors and so on—who have come here. They have provided us with feedback, and I think you've had an opportunity to review that feedback.
     Notwithstanding the list of recommendations you have, I'm wondering if you could update this committee on the recommendations you have heard from the testimony presented here. Is there anything you think should be given a lot more consideration—something you might have missed or that you hadn't considered? Is there something that stood out in the testimony?
     As I just mentioned, I think the board of directors, whether they are paid or unpaid, should actually be considered in-house lobbyists.
    One that maybe wasn't mentioned and that I didn't put forward, but that I've heard during different discussions, is how to avoid certain situations, such as designated public office holders coming to speak to government lobbying, whether they're paid or unpaid. Rather than changing the definition of paid to include unpaid, I think one consideration might be to expand the definition of designated public office holders to include that you cannot lobby for whatever period—right now it's five years—whether you are paid or unpaid.
    I want to pursue this vein of questioning a little bit more, because I think there were some people who came here and testified that the net should be cast a little broader. There are people who come here to Ottawa to influence policy, to influence government, and to influence the decision-making process, but they don't meet the criteria because they don't meet the technical criteria of being paid. They may have their flights covered, they may have their hotels, the per diems, and their living expenses covered, but because they're not actually paid per se—how does that definition work? Is that what you're talking about?
     I think that's getting at the directors of boards who may be showing up and not be.... Including them as in-house lobbyists, whether they are paid or unpaid, and getting rid of the significant amount of duties test would capture these particular individuals.
    Good point. Okay. Very good.
    I'd like to move to the investigative aspect of your duties, when you're looking into something. I think you testified before that you don't necessarily have to let somebody know that they're being investigated. Is that correct?
    Yes.
    If you were to move to the recommendation that you could apply an administrative monetary penalty, how do you see that happening? Would this be a situation where the first notice that a particular lobbyist might get is that they're being hit with a fine, or a letter saying they've been found guilty of a violation of a certain section of the lobbying act, a contravention of this act? I'm talking hypothetically. If we change the legislation, would that be a hypothetical situation? How would you see the implementation of the process if you were given the ability to apply administrative monetary penalties? What kind of due process do you think should happen there, so that people have a heads-up to know what's coming?

  (1225)  

    Madam Chair, as I was explaining to the other member, first of all, I could see the idea of administering monetary penalties where there would be a range. For communication reports or registration that might be filed later, they could receive an automatic notice, but they would be given a time for a redetermination, for example, to pay it within a certain time. Regarding the more substantial fines that may come because of administrative review, the individual would be interviewed as part of the process before I would expect to see a file put in front of me, saying “Here are all the facts of the situation, and here's why individuals should be fined this amount based on the list of criteria”, which would be clearly spelled out, as my colleague in British Columbia has done.
    They would have a chance, as they do in the investigation. They would be interviewed so that they would know what was going on. They would have a chance to present their side. But before issuing a penalty, I would write to the individual, saying “Here's the report that I have, and here's my intent to levy a fine in the amount...”, and give them the same sort of 30 days or extensions to reply, if they needed it.
    Okay. So there would be an opportunity there. It wouldn't be a complete blindside. If the system were set up properly, it wouldn't be a complete blindside.
    No, it would not.
    Okay, fair enough.
    I have one last quick question for you.
     I don't know how much time I have left.
    Two minutes.
    I have two minutes.
    Let's just say that we're not able to do everything you want to do here. Out of the list of recommendations that you have, if you could pick three—
    Voices: Oh, oh!
    Come on, Blaine.
    I'm just saying. This is my way of asking you from a priority perspective.
    Order.
    In order for you to do your job most effectively, in order to bring to light the activities that happen, to bring credibility to the business of lobbying, which three, or two, if you had to pick, would be the most important for you?
    The most important would be administrative monetary penalties, the removal of a significant part of duties, and listing all of the lobbyists who actually attend the monthly communication.
     So those would be your top three.
    Those would be my top three.
    Do you give any credence to some of the suggestions from those who have come that, due to the sensitive nature of some meetings—whether it would have an effect on markets or whatever the case might be—they would like to move away from monthly to, say, quarterly reporting, or have some mechanism by which they...? There is the allegation that just having the meeting and reporting the meeting could trigger whatever plans they have to effect their policy changes.
    When the monthly reporting was first being discussed, those same concerns—if I recall correctly—were actually discussed. Actually, it wasn't just confidential, it was security issues, which is why, when one looks at a monthly report, it doesn't have the particulars of the meeting. It would simply indicate “defence” or “finance”. The details are filed in the initial registration. The details are not in the monthly communication reports.
    Great. Thank you, Mr. Calkins. Your time is up.
    Thank you, Commissioner.
    We'll now go to Monsieur Morin, for five minutes.

[Translation]

    Mrs. Shepherd, I have a question for you.
    According to the website of the Office of the Commissioner of Lobbying of Canada, 112 cases were audited, and 32 lobbyists were deemed to have violated the Lobbying Act between 1984 and 2011. However, the RCMP did not lay charges in any of those cases. Could you tell us why none of those 32 guilty parties were charged by the RCMP?

[English]

    In terms of an....

[Translation]

The website talks about 32 cases, but there were actually 37 founded cases. My predecessor and I referred 12 of those cases to the RCMP.

  (1230)  

    I see.
    I just referred a case a few weeks ago.
    Why has the RCMP not laid any charges or done anything with those cases?
    Sorry, I didn't understand your question.
    Why has the RCMP not laid any charges in those 12 cases?
    As I explained last December, there are various reasons for that. Perhaps the deadline for laying charges had passed or perhaps there was insufficient evidence. I would suggest asking the RCMP directly.
    You are talking about the RCMP.
    Yes.
    That's a good point, especially since, last Tuesday, my colleague Pierre-Luc Dusseault asked the committee to invite RCMP representatives to appear.

[English]

    May I just caution the member—
    I know; I'm aware.
    —that seeing that it was in camera, that—

[Translation]

    Unless I am mistaken, when Mr. Dusseault

[English]

moved a motion. It was in public.
    As long as you don't discuss the result of the decision that was made in camera....
    I won't.
    Thank you, Monsieur Morin.

[Translation]

    My colleague Pierre-Luc Dusseault wanted us to discuss that in committee, and Mr. Del Mastro hurried to get the journalists out, so that we could discuss the case in camera. Therefore, I cannot discuss any details, but I think that inviting RCMP representatives is a very good idea.
    I have another quick question about the penalities imposed on guilty parties. Don't you think that asking the lobbyists at fault to write a letter of apology is a very mild punishment lacking teeth?
    All I can currently do is refer the case to the RCMP or submit a report to Parliament.
    Okay.
    That's why I recommend administrative penalities.
    Okay.
    That provides more flexibility.
    Thank you very much.
    I will let my colleague Mr. Dusseault have my remaining minute.
    Mrs. Shepherd, thanks again for your comments.
    Since another one of my motions is on the committee's agenda, I thought it would be a good time, after hearing from another witness, to present my second motion, which could not be discussed at the last meeting. I will now present my motion, if that's okay with you. It asks:
    
That, in light of witness testimony heard regarding offences under the Lobbying Act, the Standing Committee on Access to Information, Privacy and Ethics call representatives of the office of the Public Prosecution Service of Canada to testify with regard to the interpretation of the provisions of the act.
    The last motion—

[English]

     I have a point of order from Mrs. Davidson.
    I'd just like to make a motion that we go in camera when he's read his motion.
    Thank you, Mrs. Davidson. We'll recognize you as the next speaker.
    Mr. Dusseault has the floor at the moment.

[Translation]

    That is actually somewhat related to the motion presented at the last committee meeting, given that the RCMP and the Public Prosecution Service of Canada have strong ties. Of course, I am calling for a recorded division.

[English]

    Can I interrupt for one moment?
     Commissioner, I want to thank you and your staff for appearing before the committee. You're welcome to stay as long as we're in public, but I would also be prepared to excuse you and your staff at this point in time.
    Is it a point of order, Mr. Butt?
    I have a point of order.
    With all due respect, we've asked the commissioner and her staff to be here for the hour today. We can deal with this motion at the end. Can we not continue?
    Can you not respect the committee members, the rest of us, who would like to ask questions of the staff who are here today before we wrap this thing up?
    A voice: Hear, hear!
    Mr. Brad Butt: I have no problem dealing with Mr. Dusseault's motion at the end of the meeting, but to deal with it now, to go in camera and cut off debate is inappropriate, Madam Chair. I think you should let the rest of the committee members examine the witnesses today, and then we can deal with Mr. Dusseault's motion at the end of the meeting.
     I appreciate your comments, Mr. Butt. I am unfortunately bound by procedure where a motion has now been introduced and I have to entertain the motion that's on the floor.
    I do apologize to the commissioner for the abbreviated testimony. Is this a point of order as well, Mrs. Davidson?

  (1235)  

    No, I was going to—
    Okay. I still have—
    Yes.
    Was there another point of order over here?
    Can Mr. Dusseault continue? He has the floor.

[Translation]

    It's not complicated. All we have to do is vote. It will take only one or two minutes. We don't have to do it behind closed doors. We can then continue our discussion with Ms. Shepherd. Therefore, I call for a recorded division immediately. That simply reflects all the witnesses' comments. We should at least be able to vote on this.

[English]

    On a point of information, we can't actually call the question or call for a vote. I have a speakers' list, which I will now recognize.
    Mrs. Davidson, you have the floor.
    No, I don't have anything else.
    You have to move your motion.
    Okay. I thought I already did.
    No, you weren't—I thought you were on a point of order.
    Okay. All right.
    You are now on the speakers' list, and I'm recognizing you as the next speaker.
    Then I move that we go in camera for the discussion of committee business.
    It's not debatable.

[Translation]

    Can we have a recorded division?

[English]

    Is it...?
    On a point of order, Mr. Andrews.
    Thank you, Madam Chair.
    With regard to this motion to go in camera, I would like to refer members, and you, to our House of Commons Procedure and Practice.
    Mr. Andrews, is this a point of order?
    I have a point of order.
    All right, thank you.
    Maybe you'd like me to read out what a point of order is in here as well.
    We're looking at page 1076, dealing with committees.
    It's under “Types of Meetings and Activities”. I'd like to refer members to the in camera meetings definition and section of our rules of order. I'd like to read it out, starting with, “On occasion”, and for those who don't know what “on occasion” is, I have a definition: it's from time to time, every now and then—not every time a motion or something comes before this committee.
    That's not really the point, but let me continue.
    It says “...a committee may decide to hold an in camera meeting to deal with”, one, “administrative matters”, whether we have food at the table, whether we meet on Mondays or Tuesdays; two, “to consider a draft report or to receive a briefing.”
    There are the three definitions of our meetings to go in camera. “Subcommittees on Agenda and Procedure usually meet in camera”; that's not our committee. “Committees also meet in camera to deal with documents or matters requiring confidentiality, such as national security.” I would suggest that the motion we're discussing here has very little to do with national security or confidentiality.
    “Depending on the needs” of the committee, “one part of a meeting” may be “in public and the other part in camera”, which we have done in the past.
    Madam Chair, I would ask you to rule on our procedures and rules that apply to all members. We were all given this book to discuss. This practice of going in camera is for matters that aren't necessary.... It specifically in here has three reasons to go in camera: administrative, draft consideration, or to receive a briefing.
    This motion that we're discussing today has nothing to do with any one of these three, so, Madam Chair, I would encourage you to have the courage to rule that this particular motion, for which they needed help to even put on the floor, is out of order.
     Thank you, Mr. Andrews.
    I need to come back to two points on this matter. One is that the committee has a will in terms of determining what would be in camera or not, and committee members may signal that by moving a motion, if they deem that the matter before the committee is suitable for in camera discussion.
    Secondly, once the motion to go in camera is moved, again, according to page 1077, “The motion is decided immediately without debate or amendment”. So although I have some sympathy with your point of order, I am bound by the rules.
    I am now going to ask for a vote.
    Do you have a point of order, Mr. Andrews?
    I have a point of order.
    I'm sorry, Mr. Dykstra. Thank you for your intervention, but Mr. Andrews has the floor on a point of order.
    As per your instructions just then, the committee would decide whether to go in camera after consulting our rules and procedures in this book. I would like you to rule on my point of order. You said we are immediately going to go to a vote, but you haven't ruled whether my point of order is valid. I think if you had the courage and insight to look at what we have here, it speaks....
    Excuse me, Mr. Butt, would you like to read this?

  (1240)  

    Gentlemen, excuse me, please.
    Mr. Andrews, if you would, finish with your point of order.
    I was just saying, looking at our rules, that there are three distinct areas of discussion for which we might need to go in camera. This doesn't relate to any of them.
    Thank you, Mr. Andrews. I believe I did rule on your point of order by indicating that I had considered the motion to move in camera as an admissible motion. As such, it's not a debatable motion, and therefore we will go straight to a vote on that motion.
    On a point of order, I recognize Mr. Dusseault.

[Translation]

    With everything we have heard and out of respect for the witnesses, could we postpone the vote so that we can hold it in 10 or 15 minutes? That way, the witnesses who are here could continue. We could vote on the motion at the end.

[English]

    You started it.
    The only way we can proceed is if there is unanimous consent in the committee to defer the vote on the in camera motion to allow the last...I believe you had about 45 seconds left, and I had Mr. Butt on the speakers' list for the commissioner.
    I would need unanimous consent from the committee to proceed in that way. I'm at your will.
    We have to dispose of the motion.
    I don't have unanimous consent.
    I believe Mr. Dusseault asked for a recorded vote to go in camera. We are now voting on the motion to go in camera.
    (Motion agreed to: yeas 7; nays 4)
    The Chair: The motion is carried. We will move in camera. I will suspend for two minutes to allow us to change to proceeding in camera.
    I will ask the witnesses to clear the room.
    Thank you.
    [Proceedings continue in camera]

    


    

    [Public proceedings resume]
    We will resume. On the speakers' list I have Mr. Calkins.

  (1245)  

    Thank you, Commissioner, for waiting while the committee dealt with its business.
    Mr. Dusseault has 45 seconds left, and then we'll go to Mr. Butt.
    Monsieur Dusseault.

[Translation]

    Thank you, Madam Chair. I apologize for the interruption. Clearly, we would have preferred to have the vote in public.
     Ms. Shepherd, I will ask you a question for which I did not have time earlier.
    Some lobbyists establish direct contacts with public office holders, but there are also people who prepare all that work and are not necessarily registered as lobbyists.
    Do you think those people should be more subject to the legislation? Should a system be adopted that would make it possible to know who is behind those strategies, who the people preparing the work are?

[English]

    Thank you, Monsieur Dusseault. Your time is up.
    I'll allow the commissioner a brief response.

[Translation]

    There are two answers to that. I will try to go over them quickly.
    If a lobbyist works for a non-profit organization or company, I think that's included in the preparation. So it should be included in calculating the 20%. When it comes to others—for instance consultants—the legislation is clear. It's a matter of communicating with a public office holder.

[English]

    Thank you, Commissioner.
    Mr. Butt, you have five minutes.
    Thank you very much, Madam Chair.
    Thank you very much for being here to help us kind of conclude. I found this study to be very interesting, very helpful, and I think all of us want to make sure that if we bring forward amendments to the legislation, they make it a stronger piece of legislation and make your responsibilities a little easier to carry out.
    One of the recommendations you said you did like, which would be a change, is that members of a board would also be included, whether paid or not, as in-house lobbyists. Would that include trade unions as well? So all board members of trade unions, whether or not their direct day-to-day job was to be the lobbyist for the union, would be treated no differently from the board members of a private company. Is that how you would see it?
    When I was looking at it, it's board members of in-house organizations, so the non-profits and corporations. So, yes, they would be captured.

  (1250)  

    That would be covered as well. Okay.
    On the rule 8, Mr. Coates from Hill + Knowlton, who was here just before you, came up with an interesting comparison, and I'd like your comment on it. He said that lobbyists under rule 8 really should be treated no differently from the way public servants are treated.
    We do know that years ago federal public servants were not prohibited from participating in federal political election campaigns and parties, and so on. That did get changed, but he actually compared the two as not being very much different. Someone who does lobbying, who wants to come out and bang some signs up in my election campaign, really shouldn't be excluded from doing that under rule 8. Is that a fair comparison in your view?
    As I said, I considered the Public Service Employment Act, political activities, in the determination. But when you look at the objective of that for public servants, it's to assure the public that we have a non-partisan public service. With the Lobbyists' Code of Conduct, and where rule 8 is placing the public office holder in a conflict of interest—as I said, the court case has introduced the real or apparent—it's not equivalent. The Lobbying Act and the Lobbyists' Code of Conduct are there to assure to Canadians that lobbying is being done transparently and to the highest standards.
    Another one of the recommendations...and I think there's been a unanimous view that you should have an administrative monetary penalty built in, that you've had some frustration with the referral of some cases to the RCMP, and that perhaps that system isn't working. Would you generally agree that most of the cases you did refer probably would have been better dealt with through an AMP, rather than referring...? They didn't get to the level where there would be such significant offence to the legislation, that having the RCMP involved in that wasn't the appropriate route to go, but it was the only route you currently have. Would that be a fair statement?
    That's a fair statement. In all of the eight reports I've tabled to Parliament, there are examples of where I could have issued administrative monetary penalties and had reports out faster than has occurred.
     I have asked a number of the witnesses about their view on the current definition of designated public office holder. I think most witnesses, when I've asked this, have said they're relatively comfortable with who's covered under that now.
    But I'd like your view. Is it too broad? Do we need different categories? That would also bring in this five-year rule issue, where if somebody were the Minister of Finance for five or six years in Canada and then was no longer a public office holder and wanted to lobby or whatever, it's probably a lot different from Brad Butt, backbench MP, who no longer is a member of Parliament and now wants to continue to earn a living in some way, shape, or form.
    Can you comment very quickly on the current definition? Are you still satisfied that it's right? Should there be some flexibility in that five-year rule?
    As I indicated previously with the five-year prohibition, my experience is that the definition is working. There have been no challenges in cases where I have decided not to continue.
    Parliament was quite specific as to why it should be a period of five years and who should be covered. What I mentioned earlier that may be worth consideration is if it's covering the right.... For example, right now you are covering students who might go work as an intern in a minister's office for five years, if they're hired under section 128.
    I'm not sure if that's what was intended.
    Okay. Fair enough.
    Thank you, Madam Chair.
    Great. Thank you. You had five seconds.
    I have a brief item of business for the committee members, so don't all leap up.
    I want to once again thank the commissioner and her staff for appearing before the committee, and I'm sure you'll look forward to our report. Thank you for coming.
    I do. Thank you.
    I'll just let the committee know, in terms of our schedule, that the minister is unavailable to appear before the committee, but the parliamentary secretary, Mr. Saxton, and the officials can appear on March 1 for one hour.
     My proposal is that the committee provide, on February 28, drafting instructions for the analyst on the statutory review on lobbying, and that we spend the balance of that meeting starting our review of the CBC report, and on March 1, we hear from the parliamentary secretary and the Treasury Board officials for one hour, and then resume our report on the CBC report.
    Mr. Andrews.

  (1255)  

    Absolutely not, Madam Chair.
    We've asked the minister to come before this committee and to answer questions on this matter. We've given him many opportunities to come before us. As for having the parliamentary secretary, we have Mr. Del Mastro, a parliamentary secretary, at every meeting.
    This is about getting to the bottom of this. Let's open up the schedule and ask the minister to pick the day, and we'll be here to ask him questions on this. I don't think it's acceptable to have a parliamentary secretary come and speak to a committee when there's already one sitting here at the table.
    Mr. Andrews, just to let the committee know, the clerk tried every available date, but the minister is not available.
    The person available for the committee—you can't compel the minister to attend—is the parliamentary secretary. I'm at the will of the committee about whether you want to have the parliamentary secretary and officials.
    I have Monsieur Morin.

[Translation]

    I want to say that we, the NDP members, totally agree with what our Liberal colleague just said. As part of this committee's work, we are prepared to make the necessary arrangements to hear from the President of the Treasury Board, regardless of the date. We know that he is a busy man, but it's very important that he appear before the committee. Therefore, I want to reiterate the recommendation that we find a way to make it happen.

[English]

    We can go back to the minister and have a more open-ended invitation, but the problem is that if the minister is not available for several weeks, it will delay the final report.
    Again, I'm at the will of the committee.
    Mr. Andrews.
    I think that's a fair recommendation. I know that our clerk has worked very hard to get the minister here; it's not the clerk's fault. It's the minister's fault for trying to avoid coming to this committee.
    Let's go back to him with an open invitation. If that has to delay this study by two, three, or four months—whenever the minister would like to come—so be it.
    Mr. Butt.
    Listen, we can put the request in again. I think the parliamentary secretary and the senior officials are willing to come.
    This is a bit of a different story, because this is a statutory review of an existing piece of legislation. This is not a new piece of legislation being advanced by the government, where it would normally be the case for the minister to come and defend that piece of legislation at a standing committee. This is totally different. It's a five-year statutory review of an existing piece of legislation that we already have on the books, where we're looking at some minor changes, potentially, to the act to strengthen it a little bit.
    If the minister, who is obviously a very busy individual, isn't able to come, but the parliamentary secretary is able to be here with senior officials, I don't see why the committee wouldn't think that was an appropriate response from the ministry for this process.
     Thanks very much, Madam Chair.
    I can understand the disappointment of all the members. I think we all would have liked to see the minister, but if he can't be here, he can't be here. We certainly cannot compel any minister to be here.
    We have a lot of other things that we need to move on with in this committee, and I think we should go ahead with the meeting as you have suggested. If there is an opportunity for the minister to come at another time, we should pursue that. But if he can't be here in the timeframe that the clerk has offered, we need to move on and deal with the parliamentary secretary, as suggested.
    Mr. Calkins.
    Thank you.
    I also want to follow up on Mr. Butt's comments and add that this is a unique situation. It is not only a statutory review, but none of the officials we've heard here from the commissioner's office are in any way.... She's an independent officer of Parliament, at arm's length, operating away from political interference. We should keep that in mind.
    The commissioner has been here with her senior officials every time we've asked her to come. We've heard from her, and she's been quite eloquent in what her requests and her asks are. Keep in mind that while it was an act of Parliament that created her office, the day-to-day administration and operation of her independent office shouldn't be put in a situation where she comes into conflict with the minister, or whatever the case may be.
    It's regrettable that the minister can't come, but I think we can proceed with what we've been able to hear. If the parliamentary secretary is willing to come and bring some department officials to speak to goodness knows what—the creation of the act, the costs associated with the administration, I suppose—we're mindful of the fact that she operates with her own budget, independent of Parliament, reporting to Parliament on the actions and behaviours and discussions with lobbyists. I think we need to be mindful of that.
    Madam Chair, I commend you and the clerk for doing the best you can to get the minister here. I don't think we need to belabour this issue any more. If you need something, I'm prepared to move a motion to accept your timetable as you have presented it today.

  (1300)  

    Thank you, Mr. Calkins.
    We have a motion on the floor that we have the parliamentary secretary and Treasury Board officials appear on March 1.
    Monsieur Morin.

[Translation]

    I don't necessarily want to speak to this motion calling for the parliamentary secretary to appear before us.

[English]

    Monsieur Morin, that's what's on the floor at this point. A motion supercedes anything else.

[Translation]

    Can I move an amendment?
    Could we postpone making a decision on this until we can ask the minister when he is available? It would have to be a Tuesday or a Thursday. Once we know when he is available, the clerk or the chair could give the committee an answer.

[English]

    If I can interrupt, Monsieur Morin, from what I understand, you're asking us to defer discussion and debate on the motion that's on the floor. That's not an amendment; it's a deferral of a decision on that motion.
     I'm actually asking for us to ask the minister first for a date, and then decide....
    I understand what you're asking, Monsieur Morin, but that is requesting a deferral of the motion that's on the floor. I'm not sensing that we have agreement on a deferral on the motion.
    We're now dealing with the motion on the floor by Mr. Calkins. If you wish, you can comment on the motion that's before us.

[Translation]

    I just want to say that it is unacceptable for the parliamentary secretary to appear before us. The minister must absolutely appear before the committee to discuss this and answer questions about his own legislation. Hearing from the parliamentary secretary is unacceptable, and that is why I will vote against him being here. I absolutely want the minister to appear before the committee.

[English]

    Mr. Andrews.
     First of all, this seems to be a trend with this minister and his appearances before committees. This is nothing new from this minister.
    To Mrs. Davidson's comments, it's quite common for committees to proceed with other work and do other things while they wait for witnesses to come before the committee. There's nothing wrong with this committee proceeding forward with other studies until the minister's schedule can free him to come here. The question really is, does the minister want to come? He can't hide behind his schedule.
    It's not uncommon for committees to proceed with studying two or three matters at the same time. When the minister's schedule frees up, he can come before this committee. We're in no urgent rush to proceed with this lobbying legislation review. We've been doing it for some time now. We've had some success. We've heard different aspects. We haven't heard other aspects from committee witnesses who we wish to have.
    It's important that the minister come before this committee. This isn't life-threatening stuff. There are no deep, dark, secrets here to expose the minister to or embarrass the minister. It's kind of embarrassing that the minister doesn't want to come to discuss this issue. Is he too important to come to discuss the lobbying legislation? This is absolutely absurd.
    Thank you, Mr. Andrews.
    Mr. Dusseault.

[Translation]

    I will vote against this motion. The minister must take responsibility. He is the minister responsible for the Lobbying Act. He is responsible for that legislation. If he cannot make this a priority, act as the minister responsible for the Lobbying Act and come talk to us about his role concerning this legislation, that would be unacceptable.
    Ministers are accountable to Parliament. He should change his schedule in order to appear before us. He is responsible. If the minister is accountable to Parliament, he should find a way to come meet with us because we are discussing the legislation for which he is primarily responsible. He is connected to this act. This should be a priority and the minister in charge should appear before us. He should change his schedule to make that possible.
    I don't really believe that the minister has no time or cannot find a moment to come meet with us, especially since we are giving him many possibilities. If this minister is serious, he will make time and come meet with us.
    Therefore, I will vote against this motion.

  (1305)  

[English]

    Thank you, Mr. Dusseault.
    I have no other speakers, so I'm going to ask the clerk to read the motion. Then we'll go to a vote.
    The motion, as I've drafted it quickly here, reads:
That, for the week of February 27 to March 2, the Committee proceed as follows:
- on February 28, proceed to the instructions to the analysts for the drafting of a report on the Lobbying Act, and then proceed to the consideration of the draft report on the CBC study.
- on March 1, that the Parliamentary Secretary, Mr. Saxton, and senior officials from Treasury Board Secretariat appear for the first hour, and that the Committee then proceed to the consideration of the CBC report.
    We're in the process of a vote, Mr. Dusseault.

[Translation]

    Can we have a recorded division?

[English]

    We'll have a recorded vote.
     (Motion agreed to: yeas 6; nays 4)
    The Chair: Everybody have a good week in your riding.
    The meeting is adjourned.
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