Thank you for inviting me to discuss with you the Conflict of Interest Act. I have some brief opening comments to make and then I will be happy to address questions.
As you know, the Conflict of Interest Act was one of the key components of the Federal Accountability Act and came into force July 9, 2007.
Prior to the introduction of the act, public office holders at the most senior levels of government—that is, ministers, ministerial staff and advisers, parliamentary secretaries, deputy ministers and governor-in-council appointees—were subject to the Conflict of Interest and Post-Employment Code for Public Office Holders.
Various versions of this code have been in place since 1985. Administered by an ethics commissioner, the code set out both the broad ethical principles and standards to which public office holders would be held to account as well as specific compliance measures they were required to take in areas such as disclosure of assets and liability divestiture, outside activities, gifts, and post-employment.
With the adoption of the Conflict of Interest Act, most of the specific conflict of interest and post-employment rules in the code were enshrined into law ensuring that public office holders were subject to a clear and consistent set of rules regardless of change in government. Some of the rules relating to divestment and use of blind trusts were also strengthened at this time. The other major innovation of the act was to provide for strengthened enforcement through the creation of the Office of the Conflict of Interest and Ethics Commissioner. The commissioner was given powers to investigate and report on alleged breaches of the rules, levy monetary penalties to encourage compliance with the act's disclosure and filing requirements, and report directly to Parliament and on how the act is being administered.
The purpose of the act is set out in section 3. It indicates the various public policy goals the act seeks to further:
(a) establish clear conflict of interest and post-employment rules for public office holders;
(b) minimize the possibility of conflicts arising between the private interests and public duties of public office holders and provide for the resolution of those conflicts in the public interest should they arise;
(c) provide the Conflict of Interest and Ethics Commissioner with the mandate to determine the measures necessary to avoid conflicts of interest and to determine whether a contravention of this Act has occurred;
(d) encourage experienced and competent persons to seek and accept public office; and
(e) facilitate interchange between the private and public sector.
As this clause makes clear, the substantive rules of the act are focused on avoiding conflicts between the official duties of public office holders and private interests.
Section 4 defines the core concept of conflict of interest for the purposes of the act. It says,
a public officer holder is in a conflict of interest when he or she exercises an official power, duty or function that provides an opportunity to further his or her private interests or those of his or her relatives or friends or to improperly further another person's private interests.
This concept provides the basis for the rules in sections 5 and 6, which set out the basic duty of public office holders to avoid conflicts of interest and to not participate in decision-making that would place them in a conflict. It also defines the scope of the rules concerning use of insider information, in section 8, and influence, in section 9.
Other rules in part 1 of the act deal with specific forms of private interests, outside employment and activities, gifts, contracts, fundraising, and travel. As is also reflected in its purpose clause, the act seeks to provide clear rules for public office holders while ensuring that these rules are not so restrictive or burdensome that they discourage experienced and competent persons from serving in public office or hinder interchange between the private and public sectors. For example, part 2 of the act includes strict divestiture rules with respect to assets that can directly or indirectly be affected by government decisions or policy and requires disclosure of a public office holder's other assets and liabilities to the commissioner. While many assets also have to be declared publicly, those for the private use of public office holders and their family members which are not of a commercial character are exempt from this requirement. Thus, through a combination of divestiture requirements, confidential and public disclosure, and exemptions, these provisions provide transparency to show that conflicts of interest are being avoided while seeking to not unduly interfere with the personal privacy and finances of public office holders.
In considering how this balance has been set in the act, it is worth noting that some of its provisions, in particular, confidential disclosure of assets and the gift provisions, affect the privacy and financial interests of family members of public office holders as well.
In her submissions to you, the commissioner has suggested that the balance that the act currently sets with respect to divestment may be more restrictive than what is actually necessary to avoid real conflicts of interest.
A similar balancing of goals and interests is seen in the administration and enforcement provisions found in part 4 of the act. The commissioner is mandated under sections 44 and 45 to investigate and report on alleged breaches either in response to a parliamentarian or on her own initiative.
At the same time, section 46 requires that a public officer holder be afforded the opportunity to present his views before a report that could impugn his reputation is made public, reflecting a basic principle of procedural fairness.
A similar protection is provided with respect to the levying of administrative monetary penalties, and confidentiality requirements seek to avoid unfair or premature damage to reputations that may result during investigations into unproven allegations.
Finally, I would like to note that the Conflict of Interest Act is just one component of a broader regime of public sector ethics and accountability.
This broader regime includes “Accountable Government: A Guide for Ministers and Ministers of State” , which sets out the Prime Minister's expectations for his ministry.
Annex A of “Accountable Government” sets out broad ethical standards of behaviour for all public office holders, which goes beyond the requirements of the Conflict of Interest Act. Like the act, compliance with these guidelines is a term and condition of each public officer holder's appointment. “Accountable Government” also contains guidelines for political activities of non-partisan public office holders as well as particular rules for ministers with respect to fundraising and lobbyists.
The Lobbying Act contains an additional five-year post-employment prohibition on lobbying for many of the same public office holders who are subject to the Conflict of Interest Act, including ministers, parliamentary secretaries, ministerial staff, and deputy heads. The post-employment provisions in the two acts overlap with respect to what activity is covered, the relevant time periods, and the public office holders to whom they apply. They are not fully aligned, however, and are administered by different commissioners.
The Public Servants Disclosure Protection Act provides a regime for the disclosure and investigation of wrongdoing by public servants, administered by the Public Sector Integrity Commissioner or PSIC. Where a disclosure deals with a matter covered under the Conflict of Interest Act, the PSIC refers the case to the Conflict of Interest and Ethics Commissioner, who must investigate and report on the matter.
Commissioner Dawson has made some recommendations for providing her office with more discretion to deal with these referrals, and we look forward to receiving the committee's views on these.
Under the Public Servants Disclosure Protection Act, the Treasury Board has adopted a code of conduct that applies to all public sector organizations, and individual organizations have adopted their own specific codes as well. These codes form part of the terms and conditions of employment of every public servant. Public servants in the core public administration are also subject to conflict of interest and post-employment rules that have been established by the Treasury Board through policy.
That concludes my opening remarks, and I am happy to address any questions.
I think that, in looking at that particular recommendation, the committee may want to consider the value at which gifts can raise concerns about perceived influence on a public office holder and therefore warrant triggering the public disclosure requirements of the act.
One thing I would note is that the act does require disclosure to the commissioner if there is a series of small gifts from a single donor that add up to $200. So it's not just a single $200 gift that triggers that, it is if there is a multitude of small gifts given by a single donor to a single public office holder; that can trigger it. And that threshold, when it was established, when the act was passed as part of the Federal Accountability Act, I mean, was intended to be a meaningful threshold in the sense that it was felt that at that point, the public might view a gift being given in that amount or more as potentially being given for nefarious purposes as opposed to a lower value gift. There was a real attempt to figure out the right threshold to communicate to the public around that.
The other thing I would note is that the act doesn't strictly place a requirement only on public office holders to disclose gifts. That disclosure requirement also attaches to the spouses, common-law partners, and independent children of public office holders on gift disclosure. So that is one of the provisions of the act that isn't specific to the public office holder. In some ways, it is more invasive in the sense that it also applies to their immediate family.
For example, if you had a spouse of a public office holder with a career outside the public sector, if that spouse were to attend a business lunch, as might be the norm in that particular industry, and that business lunch was paid for by the client or the person who they're having lunch with and that lunch was over $35, that spouse would then have to disclose the fact that occurred and put that on the registry. I think that's something the committee may want to really think about. When you think about the level of disclosure around gifts, at least the way it's currently crafted in the act, this isn't strictly an obligation of the public office holder. It does extend to family members. That's just something the committee may want to consider.
Certainly from my perspective, I'm able to see from my vantage point how that document has changed over the years, because I've seen every version of that document from the very first one produced by Prime Minister Trudeau all the way to the version that exists and that was published in 2011. I can say that the document is remarkably consistent in the fundamental principles that it enunciates. I think those principles resonate not just in Canada, but are the kinds of principles that you would expect to see in most Westminster forms of government. So in that sense the base, the foundation, of that document is almost, in a sense, timeless. It really reflects the hundreds of years of evolution of Westminster government. Those basic principles are all tried and true.
The notions of what it means to have cabinet government, the role of a prime minister in cabinet government, the role of the governor general, the role of the executive, the role of Parliament, the accountability relationship between ministers and Parliament, the role of deputy ministers, the role of exempt staff, those are quintessential principles of our form of government. They tend not to radically change over time. They may be evolving, but I don't think there's anything in the current version of accountable government that would suggest there's any weakness in those core principles.
I think, generally speaking, it's pretty robust. At least when I look internationally at Australia, New Zealand, the United Kingdom, I see very similar types of documents produced by them that enunciate these principles in very similar ways. We're remaining fairly consistent within our Westminster tradition.
Thank you very much, Mr. Chairman.
Thank you, Mr. Wild, for being here today.
At the outset, I want to say I think it's great that we're doing this five-year review. I think it's great that we brought forward the Federal Accountability Act, and, as part of that, the Conflict of Interest Act, and that we did try to set some rules. We brought a comprehensive package forward and we've done our best. The whole idea of this review is to get feedback from you and others on the following. Is it relevant again five years later? Is it covering the right people? Are the right disclosures being done? Is the commissioner's mandate appropriate?
In that vein, I asked the commissioner on Monday a couple of questions, because I'm struggling with a part of the act. Obviously, we're covering certain public office holders, including cabinet ministers, but essentially we're saying to somebody that once you're appointed to cabinet, you're not really a member of Parliament anymore. You're not really there. You can't really advocate for your community on a local issue. And I'm struggling with that.
I'm sure every MP, if they're on the government side, wishes they're going to get that call from the Prime Minister and they're going to get appointed as a cabinet minister or a parliamentary secretary, and they want to take on that role and they want to do that job to the best of their ability. But it sounds like the way this act is written we've almost handcuffed those same people, preventing them from being able to advocate for their community on an individual issue, which may have absolutely no relation to the ministry of which they're a minister.
Is that a shortcoming in the act? Or was it particularly deliberate that we really do have two very clear sets of individuals who work in the House of Commons, those who are in cabinet or parliamentary secretaries and those of us who are regular MPs?
There are a couple of things around that question. There's a bit of grey in the answer in the sense that the act does attempt to balance the idea that you have ministers who are also members of Parliament. Quite frankly, their constituents have a right to receive the same services from their member of Parliament as from other members of Parliament. So, how do you balance that then with the role a minister may have and the issues that can create?
Subsection 64(1) of the act is a very important subsection. It was the subject of a lot of discussion when the act went through the House and Senate the first time around. It's an important section because that is the section that lays out that nothing in the act prohibits a member of the Senate or House of Commons, who is also a public office holder, from engaging in those activities that he or she would normally carry out as a member of the Senate or House of Commons.
That was a deliberate choice to put that provision in at the time. It was put there because the idea was that ministers and parliamentary secretaries would have to play a role as MPs and senators in conducting activities on behalf of their constituents. The recent decisions of the commissioner have suggested that there are certain areas where that work has to be curtailed.
I would say there is nothing necessarily new in that debate. This whole issue of the role of ministers vis-à-vis certain types of bodies, in particular bodies that carry out any kind of an adjudicative function, has been an area of discussion and controversy going back to the early nineties and probably even before.
I think the difficulty is whether or not additional clarity may be needed to try to figure out where the lines of the go and no-go zones need to be drawn. The commissioner offered her views when she appeared and the committee is going to have to look closely at that and think about that.
I can say that the primary concern in the development of the act, if you look from 1990 forward and you look at how accountable government has changed—because it has a whole chapter that deals with the role of ministers vis-à -vis administrative tribunals in crown corporations—and if you look at all of the issues that have gone on in that last 20-25 years, the line that's being drawn is really saying that you have to be particularly careful if you are a minister responsible for the actual organization.
If the organization is in your portfolio, you need to be particularly careful about having any interaction with that organization in order to further the interest of a constituent. But you still have to be able to do the things that an MP would otherwise be able to do. There should be processes put in place so that your constituents can have the normal referrals that other MPs may be able to offer them.
The uncertainty at the moment is where all of that sits, given the recent decisions of the commissioner and whether or not these are policy areas that the committee wants to weigh in on. I think we will wait to see what the committee has to say about them.
From my perspective, from a public policy perspective, we need to look at that to make sure that the balance is all correct. Right now, I think there is a bit of tension between the orders the commissioner has issued and how accountable government is framed, and we're going to have to look at that.
Thank you very much, Chairperson.
What we're talking about is a very complex issue. What I'm struck by in your opening remarks is the number of players involved and the number of levels and nuances, whether it's the Conflict of Interest Act, “Accountable Government”, the Public Servants Disclosure Protection Act, and then we have the Treasury Board guidelines as they pertain to senior employees or all public employees, the Lobbying Act, and two different commissioners.
At the end of the day we would all say we want there to be clear, ethical rules and we want there to be an avoidance of any conflict of interest. So I think part of this statutory review is to really try to get at the issues as to whether the system itself is not clear enough, or whether it's being enforced properly, or in fact if there really isn't any enforcement—and you've spoken to that a little bit today—so that if an action takes place there is really no consequence. Those are the questions we have to try to drive at.
I am curious that you've just said, in response to one of my colleague's questions, that you think there is a grey area between what pertains to a minister and what pertains to that person as a member of Parliament. When Ms. Dawson came on Monday she seemed to think there is a clear delineation.
I really think it opens up a lot of issues: is there clarity around what these guidelines or rules are in terms of the people administering them, and in terms of the people who have to live by them? Everything you've said today leads me to think that it isn't where it needs to be in terms of overall clarity, and that all kinds of stuff can go on, whether deliberately or not. That's what we have to focus on because at the end of the day it is about public accountability and being very clear on where we all stand on this.
Maybe you could address that, in terms of whether there is a need to look at some overall structure, and why you think there is a grey area where apparently Ms. Dawson doesn't have that opinion. That's definitely a different approach you're taking there.
I'm certainly not trying to disagree with the commissioner. That would be a bit presumptuous of me since it's ultimately her responsibility to interpret the act.
What I'm saying is that annex H to “Accountable Government” sets out a frame of guidance around the interaction of ministers with quasi-judicial bodies, bodies that carry out adjudicative functions. The recent compliance orders would necessitate our having to change that guidance.
In other words, what we thought was happening under subsection 64(1) the commissioner has, I suppose you could say, clarified is not actually what's happening under subsection 64(1). We need to look at annex H because annex H—which was really rewritten back in 1993 and hasn't changed much since then—moved the yardstick away from a complete ban on any interaction between a minister and a quasi-judicial body to saying that the ban is with respect to the actual adjudicative function, but, for example, licensing or permits where the representations are open to anyone to be made, may be okay.
All I'm saying is that as a result of those compliance orders coming out, we now have to look at that and judge what it means in terms of what we thought was the policy framework we had established through the act, and look at what subsection 64(1) meant, and then how that was being reflected in the specific guidance in “Accountable Government” around the interaction between ministers and quasi-judicial bodies.
It's clear to me that we have a problem right now as it sits and that we're going to have to revisit what we thought were the rules of the game because it looks like they're not what we thought they were.
Thanks very much, Mr. Chair.
Thanks, Mr. Wild, for being here with us. It certainly has been interesting testimony that we've heard this afternoon. I know that I've learned some things that I didn't know before you started giving your presentation, so I really appreciate you being here.
You talked in your opening remarks about the PCO and how they're the primary public service adviser to the Prime Minister. Part of your responsibilities, if I understood you correctly, is to determine whether or not the act covers what it needs to or there need to be other things, and whether it covers the appointees that it needs to cover.
I have a couple of questions.
Do you think the act covers what it needs to? We've had some people suggest that there should be other Governor in Council appointees or people covered by this act. What do you think about that?
Also, here's one of the other things that I have wondered about myself. Should parliamentary secretaries be held to the same restrictions as ministers when it comes to cooling-off periods and the rest of it?
Could you comment on those, please?
With respect to coverage, and in particular the appointee question, I think it's certainly clear that there is a particular form of appointee that the committee may wish to consider, whether or not the definitions of public office holder or reporting public office holder need to be changed in order to capture those individuals. It's a somewhat unique form of appointment, wherein you have chief executive officers who are appointed by their board, rather than by a minister or the Governor in Council.
In particular, we all know about the case of the Governor of the Bank of Canada. There are directors of museum corporations, as well as pilotage authorities, who fall under this category. I think it's clear that there's probably something to be said for looking at whether or not that definition needs to be revisited in order to make sure we haven't missed anybody.
The parliamentary secretary question is an interesting question from the perspective of, again, the purpose of the act. It's trying to ensure that those who are discharging the exercise of powers, duties, and functions housed within the executive branch of government are doing so in a way that they can not only demonstrate publicly, but that they are in reality being done in a way that is not influenced by any private interests, right? That's the overall objective here. It's to make sure that the public then has trust that those who are exercising executive authority in government are doing so in a manner that is appropriate, with “appropriate” meaning determined by the public interest, and not influenced by the private interest.
I think there's a big question about where parliamentary secretaries then fit into that scheme. They don't have any powers, duties, or functions in law. Their role is to assist ministers vis-à-vis their responsibilities in the House of Commons.
They may also assist ministers in developing government policy, but they don't actually discharge a specific in law power, duty, or function in the same way that ministers do, or, quite frankly, public servants who exercise authority on behalf of ministers, so there is something to be said about looking at whether or not they fit into a slightly different category. They don't necessarily have access to the same information that ministers do. They don't have access to cabinet information, typically; they may be provided some cabinet information if they work on a particular policy issue for a minister. They exercise a slightly different category of duties, so they have a slightly different relationship in terms of, to me anyway, the issues that the act is trying to capture.
That's an area that, again, the committee may want to think about and look at as they think about what a parliamentary secretary does versus what a minister does, the difference of the use of authority, and the access to information between the two within government.
Thank you very much for having me and for accommodating the fact that I can't be there in person, which I would have very much enjoyed.
I probably won't need the 10 minutes, and I want to make sure there's as much time for questions and answers as need be for me to be helpful. My experience with this field, whether municipally, provincially, or federally, has convinced me of just a couple of guiding principles that I hope will be helpful in this review process.
One is the challenge of granularity. In other words, there is the temptation to lay out with increasing specificity what constitutes a conflict, because people have to govern themselves and want to know with as much clarity as possible the rules they're going to be falling under.
But if you set out as some of the sections in the act do—such as section 14, for example, on contracting, which sets out spouse or parent or child—invariably, I think you're going to lose sight of the guiding principle, which is not advancing a private interest through the exercise of a public power. Why, for example, does that not apply with equal force to a brother or to a cousin or to a niece? Wherever you try to draw the line, I think, invariably, you're going to leave out things that are, in the public's eye, in the same category of private interest.
The overall structure of the act is very value-based and is very much guiding itself by the desire to enhance public confidence, and I hope this review validates that approach, because I've seen in municipal and provincial and other statutes the attempt to become more and more granular lead to less and less public confidence at the end of the day. That's one comment as a general matter.
The other comment is related to that. If there's one criticism of the act that I've heard within the community of other integrity commissioners or other people who practise and observe this area of law and policy, it's the line between actual conflicts as our concern and the apprehension of conflicts or the perception of conflicts. I think actual conflicts are remarkably difficult to establish in many cases whereas the perception is often much clearer.
I think, increasingly, what people are concerned with is not entering into a course of action that's going to give rise, in a reasonable observer, to the perception of a conflict. That's certainly a legal standard well known in administrative law around decision-making. Increasingly, in the new municipal statutes that I'm aware of, for example, the tendency is to embrace that idea of perception being as potentially damaging as the actual conflict. Again, I think it's a point of discussion that I know you're already considering and that those who designed the statute already considered, but it's alive in the community of accountability officers, so I wanted to mention that.
The third point is about the powers of the commissioner. I know there's been media discussion of whether additional financial penalties are necessary. We're had an interesting case in the City of Toronto as I'm sure everyone around the table knows in which a court found our integrity commissioner didn't have the authority to ask the mayor to pay back certain funds that in her judgment were paid in contravention of the code of conduct.
Again, that is puzzling in terms of public confidence. If the issue is that you received a benefit, why wouldn't it make sense, in a restitution sense, to have the remedy be to pay that money back or to pay that money into the city coffers so there's no individual benefit?
I guess the third point would be to not necessarily comment on the specifics of what monetary penalty would be appropriate. The commissioner has a strong point in saying it's unusual to have monetary penalties for breaches of the process but not for substantive breaches. But, again, I wouldn't want to see that leading to granularity so that this penalty of up to this particular amount in this particular case would be appropriate.
I think the value-based approach—of saying the remedies necessary to ensure public confidence ought to be the remedies the commissioner has at her disposal—is going to fulfill the objects of the statute much better than an attempt to itemize with exact precision the nature of which penalty ought to attach to which kind of conduct.
Those are the three areas that are very much top of mind for me and, in conversations about the act in this review, are the ones that come up around this particular statute. This statute was welcomed when it came into force and has been a qualified success story in terms of raising the quality of conduct and raising the credibility of review. But qualified successes, obviously, are double-edged swords and there are clearly elements of a work in progress yet to be completed as well.
I'd welcome any discussion you wish to have or questions that I might be helpful in answering.
Thanks for the opportunity to share those opening thoughts.
In my view, this is not particularly grey. Section 9 is clear. What creates the opportunity for clarification, and I'm not sure that's the same as a grey area—that's for you to explore—is the operation of section 64 in this other provision of the act, which speaks to not wanting to interfere with the ordinary activities of a member of Parliament.
I think it is clear that section 9 needs to constrain the other section. In other words, there shouldn't be any interference with the ordinary conduct of an MP's affairs, except to the extent that you cannot use a position of influence to affect an adjudicative or regulatory decision.
The public confidence metric is the key one. I heard a bit of the Privy Council representative's thoughts, and it goes to a particular appendix and particular language, and I don't want to speak to the specifics of what protocols or guidance exist and what needs to be revised. But the principled approach is pretty clear: it would make no sense to have a section like section 9 that sets a global restriction on any public office holder using that influence to get a particular result for any private or commercial interest if the exception were whenever you were doing so for a constituent, or where there was that other relationship.
That is not to say, with respect to Minister Flaherty, that there was an attempt to undermine the act or an attempt to act improperly. It's important to also remember the advice-giving and principle-clarifying role of this office and this legislation. The idea, in other words, I don't think should be just the ex-post moments where you can say someone contravened the act. The best-case scenario is where conduct can be governed by good advice and good, sensible distinctions based on the legislation.
So I don't think it's particularly grey, but having two competing provisions does raise the important moment to say here is how they live together. In this case, it is pretty clear how they live together, and section 9 has to prevail whenever there is any ambiguity. When you're sitting on the fence and don't know which way to go, the purpose of the act has to be the governing issue, and you don't have to be a lawyer to see why that would be the most sensible way to understand the legislation.
That's the way I interpret it. We weren't expecting Commissioner Dawson to jail the finance minister over this. She was clarifying the act. I think it was fairly clear. She said section 9 did take precedence.
I'm not sure if my colleagues on the other side are trying to water down the act, but they seem to be very uncomfortable by this. I had asked if it was okay for me as an ordinary member of Parliament under section 64 to write the letter, and she said it was absolutely correct. My colleague Mr. Warkentin then suggested that if Charlie Angus received financial interest from Aboriginal Voices Radio, would that be wrong? She said, well, then, she would consider it. But as I received absolutely no donations from Aboriginal Voices Radio, I remain, like my colleagues around the table, an ordinary member of Parliament.
She clarifies the rules. It would seem to me that we should be able to move on, but my colleagues on the other side seem to want to perhaps reopen this and water down the act.
I'd like to just ask you something else about my colleagues' concerns. They seem to be very much against any administrative monetary penalties for ministers who break the law, but they are suggesting that perhaps an MP who writes to the Ethics Commissioner with an investigation, and lets anyone know, should be liable for punishment because this should be kept secret.
The example I'd use is from last Friday. Is it Mr. O'Toole, the new guy from Durham? He did a press release saying he was going to launch an investigation against one of our colleagues. It's a fairly spurious accusation, but he didn't tell the Conflict of Interest Commissioner until Monday, so to me that's politics. It's not great, but it's politics.
Is there anything to be gained by deciding that we're going to keep investigations secret? It seems certainly there would be something to be gained by a minister being able to keep an investigation secret. But is it really something that's going to add anything by our going after Mr. O'Toole and subjecting him to monetary penalties for the fact that he went to the media before he went to the Ethics Commissioner? Wouldn't we just say, “Hey, this is politics”?
I think there is some risk in the sense that the more jeopardy you add, whether monetary policy or other kinds of sanctions or discretion around remedies, the more someone who's subject to this can legitimately say, “I deserve more process. I deserve more of a chance to be heard.” It becomes a much more legalized process the more you raise the stakes, as opposed to, for example, simply a reporting remedy, to say there's been breach, and leave it to either Parliament or some other process to decide on a remedy. Then, in fact, the powers of that commissioner can be more free-ranging, because there is less at stake. In other words, it's not that you can simply change the remedies without changing the other character.
But, again, I come back to your evocation of balance. I think to give the commissioner discretion to consider both the fairness of any process to the subject minister and a range of remedies appropriate to both deter the conduct and address it...so it's the classic example, as I said, from the city, of not having the ability to order restitution. Again, I'm not commenting on whether I agree with the court or whether they got the statute right, but as a proposition, it seems puzzling that you would have a conflict of interest or code of conduct that would not have the ability, for example, for a commissioner to order an amount of money repaid.
It's different when you're looking at monetary sanctions and how significant they should be for conduct. I don't think we want to get in a world in which that becomes the story: it's about the money. What we keep the narrative around is: what is necessary for the commissioner to be able to be effective in her role and enhance public confidence? That, to me, is more important than any kind of “gotcha” moment that anyone would be subject to.
So the penalties, and the commissioner's view on them, are sound, but I would worry if that became the distraction from the broader purposes at which the act is aiming.
I'm glad you asked that question. When I say the public knows, what I mean is the distinction between a private interest and a legitimate public authority is pretty clear to people. For example, it may be the spouse, the sibling, or a whole bunch of proxies where we would assume you're going to be affected by your child's interest.
But we know in particular situations it can be the good friend you've known since grade school. It can be the person you have a crush on and are trying to impress by wielding your authority. Why would we care about the family relationship and not the situational context in which it may be quite a distant relative? In that context it's clear, based on the information and evidence provided, that it had a material bearing on the exercise of a public authority. That to me is the issue. The act cares about conflicts.
To reduce it to this idea, that as long as I'm only biased in favour of my nephew or I'm only interested in the private relationship of a former roommate, somehow it's legitimate. To think that somehow it's okay to compromise the integrity of a public authority, as long as it's this private interest and not that one, creates cynicism and a sense of rule-bound seeking of loopholes. It just doesn't resonate with anyone's lived experience, right?
Everyone in their own life knows when they have been affected by a personal relationship. It's not usually mysterious. What it needs to be is evidence-based—it can't just be the allegation or the fact of prior association. That's what the commissioner's for: providing an objective, non-partisan, evidence-based review that's much more reliable than we would get by confining ourselves to categories.
In the City of Mississauga inquiry, you had a child of the mayor affected. At first glance, that seems to be a no-brainer. But leaving aside the specifics of that case, which we had a whole public inquiry about, we have to ask: when your child's in his fifties and you're in your eighties or nineties, at what point does it stop having the same impact as when your child is 15 or 21? So context matters much more than status, and that's the point I was trying to convey.
I take a different view from the commissioner on this. I have a lot of respect for her and for others in the field. For example, David Mullen is a colleague in this field, and we both served as integrity commissioner for the city at different periods. We take a different view. His view is that no gift should be under the radar.
Commissioner Dawson has said that the radar should reach deeper than it does.
I'm comfortable with a fairly healthy de minimis line because I don't think the public is concerned about the nickel-and-dime stuff. The example I used to use is that city councillors would complaint that they wanted to give out Marlies tickets, and they heard the integrity commissioner wouldn't let them go to the neighbourhood Boys and Girls Club to give out Marlies tickets because it was a gift they were dispensing or had received from the city-owned organization.
My view is that the public knows the difference between Marlies tickets going to the Boys and Girls Club and box tickets at the Air Canada Centre to watch the Leafs. In other words, it's not that going to a hockey game is in one category, the potential of influencing through the giving of gifts is the mischief.
I'd rather we had a standard that says that, and lets the Commissioner make the determination, than these arbitrary cut-offs. For administrative convenience I can see you need a number and obviously we can't have everything resting on broad discretion. But I'd be fine with $200, $300, or $400. Eyebrows will be raised at some level, and that's the level at which I would put this. I don't think that $50 is in any reasonable person's view the kind of gift that is going to get a public official to act contrary to the public interest. That kind of benefit just doesn't ring true to me.
But again, I respect the Commissioner closer to this. I respect colleagues who say there shouldn't be any limit below which you don't get the scrutiny.
This is one about which people committed to accountability may disagree.
Yes, I think that's fair. It's a tough concept to get your head around. The same person you voted for—who was on the campaign hustings, who is part of government, who is a political player in a very significant sense—needs at the same time, wearing a different hat, to be an impartial person exercising statutory authorities for the public interest.
There can't be a partisan reason, for example, to approve a particular licence or engage in a particular prosecution or make a decision on the allocation of those resources. This is where ministers really wear two hats and are intended to wear two hats in our system: that they be drawn from the ranks of the elected politicians or senators, but also, when performing those functions, need to be free of conflicts and, I would argue, need to be seen to be free of any conflict of a private nature.
So I think that's right; they're different accountabilities. The prime ministerial one is ultimately about keeping your job. The other one is about a reporting obligation: to say, if there's been a breach, that there has been a breach.
But really, the consequences of that are going to be political for most of these individuals, so these accountabilities are not unrelated, even though they're of different kinds.
It's a very intriguing issue. It's not just citizens, of course, but in some cases it may be people doing business with government; it may be a whole range of people who will come into knowledge of what they consider to be a potential conflict.
I can't think of a principled reason that we wouldn't want to hear those concerns. On the other hand, if you could simply go to all the political opponents of a particular minister and say, “Why don't you start flooding the ethics commissioner with complaints day and night?”, it would become an untenable situation, a more partisan situation, and one ultimately for which there aren't the resources to do justice to the meritorious complaints.
I think a model in which there is an opportunity to welcome complaints from others, but also a screening mechanism such that the commissioner can decide which ones are meritorious and not necessarily have to investigate every one, or every one in the same way, would be a middle ground or a balance.
If you're looking at it from the standpoint of the purposes of the act, I can't think of a principled reason that you wouldn't want to hear concerns from citizens or other interested parties. At the same time, if you opened it up without any constraints, you would undermine those very goals.
The best solution I can think of is to try to use the principles to find that middle ground. For example, you could say that a minister should never have anything to do with a constituent who is coming before a regulatory or other body. But these are politicians, and the nature of representing a riding and a constituency is that you want to help.
One solution I know that has been tried with some success is one in which the minister can write about his or her personal experience with, let's say, someone seeking a licence, in the CRTC context—not to say “I think they should get the licence”, but “if I have had a positive experience, why shouldn't I be able to share it?”—in a way that then is up to the regulator and that is respectful of the integrity and impartiality of a regulator to make a decision.
When I've been asked whether a minister should write a letter as part of a process, rather than say “never”, which I think would be unduly constraining, I would say that there are contexts in which you can do so and respect the integrity of the process and not suggest that you think there's an outcome that the minister is advocating for. It's the advocacy that is the no-go zone, not the being part of a process or sharing relevant information and so forth.
I think if you take that principled approach, you'll find far more middle ground that in fact will satisfy the legitimate interests of ministers as politicians while reinforcing the integrity and impartiality of these important regulatory or quasi-judicial settings. A no-go zone is important, but it's important to limit it to the areas in which this would actually do damage.
I think there is actually a way forward. I think you set out the dilemma quite well. The way forward again is looking for the principled middle ground. One that comes up a fair bit in this accountabilities sphere is the idea of advanced judgments. So you say, look, I want to take on this role and can I get an advanced ruling from you the commissioner on whether I'm running afoul of the rules? I get my precision and predictability. The commissioner gets a chance to lay out, again, a principled foundation of what is going to, and not going to, offend the provisions, and then can do better. The commissioner can report in annual reports and otherwise on the aggregate kind of advice that she's giving so that others get the benefit of seeing how these rules are developing.
Without violating confidentiality of an advice-giving, without having to wait until ex-post judgment that you thought you were okay but you weren't, there's a way to give predictability, coherence, and fairness. I know a lot of the former ministers simply go to former ethics commissioners who are now in private practice, get an opinion letter from them on how the legislation would be read in their context, and then they keep that in their back pocket as some kind of insurance for what they're about to embark on.
Why create this facsimile or proxy for something that can be a much more direct relationship with someone who has that statutory mandate acting in a non-partisan sense in the public interest being able to say, here is an advance judgment based on these available facts? Again, if you don't share all the necessary information, and if that information changes, then of course a different outcome may occur. But if you look at these issues.... I had the chance to testify as part of the Mulroney trial, or the Oliphant inquiry, where this was a key issue in much of the discussion. It's hard to think of scenarios in which you can go wrong where you ask for advice, receive it, and rely on it where the advice giver is the statutory office holder with jurisdiction over the act.
Thank you very much, Dean Sossin, for joining us today. I just want to follow up on a number of points that you've made.
On this issue of advanced judgments, I don't know whether the commissioner in this case would be happy to do that or not. It puts a lot of onus on that person, almost a liability, because you are in effect giving a clearance, but in any event it's a good concept. I wonder if you could give us any information as to where that's actually working so we can take a look at it.
The other question I'd like to get at is, I know that in some of the writing that you've done you've looked at this issue of apparent conflict of interest and I think it's related to this question of advanced judgment as well. I think one of the questions that the committee is facing is whether or not with the omission in the current legislation—or the terms that are used “real, or apparent, or potential” in relation to conflict of interest—there actually is a big gap there. So if you have any opinion or advice on how those should be included, particularly following up from the Oliphant commission, I think it would be very helpful.
Advance rulings—we'll start with that—are not uncommon. For example, they're a routine part of how our tax system works. In this field, the Ontario integrity commissioner, for example, would say the most significant part of her work is the advice-giving, which runs the spectrum between someone saying they want to go to an event, here's who's sponsoring it, and asking for advice on whether they should go. Current office holders, in other words, get that kind of advance ruling quite often. Some of the legislation and/or codes of conduct will specify that, when advice is given in that context, the politician or office holder has the right to rely on it. In other words, a different view won't then be taken if a complaint is brought.
It is in a sense like an insurance policy. It does put the commissioner in a position of having to make that call, and it's not always an easy call to make because the glare of public scrutiny afterwards may in fact reveal a different view. Again, the safety valve is based on the information at the time, so it's not open to that minister to be partial in the disclosure, get a favourable ruling, and then feel somehow clear to do something which, if the fullness of it had been revealed, might have led to a different result. So it's only as good as the disclosure and transparency of that.
I actually think it's a much better system. What we don't want is just a system set up to catch people. We want a system that's set up to make people work more effectively in the public interest, so it's probably where I differ from members around that table. This came up, of course, with another integrity commissioner not long ago. If someone hasn't been prosecuting, I'd ask, what have you been doing? Some commissioner who hasn't been prosecuting, but has been engaging in educating politicians and dealing with them on an advisory basis and leading to much better conduct, may be in fact a success story. So it's not, in other words, just the number of complaints and investigations and outcomes by which we should judge the effectiveness of an accountability officer. It's how the culture is changing and whether the public interest is served. That approach to advance rulings and advice-giving is key.
As I was indicating before, I'm a strong proponent of the idea that you can't have a regime dealing with conflicts of interest that doesn't deal with apparent conflicts, and still lead to greater public confidence. In other words, it's not that you can't. We have a statute that says “actual conflicts”, and that clearly is erring on the side of fairness to those caught up in this because the standards of an actual conflict are more precise than the standards of an apparent one. But I think you're losing more in diminishing public confidence than you're gaining in fairness. The balance, I think, can be struck with having apparent conflicts included, but with a reasonableness test so that there is an objective, a check, on either a rogue commissioner who goes off on a political vendetta, or on having too much uncertainty.
Remember, this can all be subject to judicial oversight at the end of the day if someone's receiving a penalty or other jeopardy. The accountability I think is still there, even if you move to apparent conflicts, as I believe the scheme should.