Good afternoon everyone.
First, I would like to advise the members of the committee that I must leave in about 10 minutes. Mr. Clarke will then chair the committee.
As well, because Mr. Clarke and Mr. Choquette have a commitment with CPAC, we will be ending the session at 4:45 p.m. today.
Pursuant to Standing Order 108(3), we are continuing our study of the implementation of the Official Languages Act at Air Canada.
Today, we have the pleasure of welcoming two representatives from the Office of the Conflict of Interest and Ethics Commissioner: Ms. Lyne Robinson-Dalpé, director, advisory and compliance, and Ms. Peggy Koulaib, chief of procedures.
We also have with us Mr. Bruce Bergen, senior counsel at the Officer of the Commissioner of Lobbying of Canada.
We will begin by listening to your presentations. Then, as usual, we will move into questions and comments from members.
Please proceed, Ms. Robinson-Dalpé.
Mr. Chair and honourable members of the committee, I am pleased to appear before you today on behalf of Mary Dawson, the Conflict of Interest and Ethics Commissioner, who regrets that she is unable to be here herself. I am joined by my colleague Peggy Koulaib, chief of procedures.
You invited the office of the commissioner to discuss the administrative monetary penalties under the Conflict of Interest Act, in order to aid the committee's examination of proposals made by the former Commissioner of Official Languages, Graham Fraser, in his special report to Parliament regarding Air Canada.
Procedural fairness is important in an effective administration of any administrative monetary penalty regime. The administrative monetary penalty regime established under the Conflict of Interest Act was implemented by Commissioner Dawson in November 2008, more than a year after the act took effect. She took the time necessary to develop appropriate processes to support the new regime, and to review penalty schemes used by other bodies in order to ensure procedural fairness.
The commissioner may impose administrative monetary penalties of up to $500 on reporting public office holders for failure to report certain matters within established deadlines. Violations include, among others, not filing a confidential report within 60 days after appointment, not publicly declaring certain assets within 120 days after appointment, not disclosing a material change to the confidential report within 30 days after the change occurs, and not publicly declaring a gift with a value of $200 or more within 30 days after receiving it.
The provisions of the act covered by the administrative monetary penalty scheme are set out in section 52 of our act.
When the commissioner becomes aware of a possible violation, she reviews the circumstances surrounding it. If the commissioner believes on reasonable grounds that a reporting public office holder has committed a violation, she may issue a notice of violation to the public office holder, along with a proposed penalty of up to $500. The notice is not made public.
The act gives the commissioner a degree of discretion to determine the amount of a penalty, taking certain considerations into account: the fact that penalties are intended to encourage compliance rather than to punish; the reporting public office holder's history of prior violations during the previous five years; and any other relevant matters.
The commissioner has interpreted such relevant matters to include particular circumstances, for example, a delay in our office being notified of a reporting public office holder's appointment by his or her employer in the case of missed reporting deadlines during the initial compliance process. She also considers whether our office has been informed of a possible violation by the reporting public office holder involved, or whether the information was brought to our attention by a third party.
I'll give one final example. The commissioner is more likely to impose a penalty for a failure to report a material change that involved an activity prohibited by the act, such as purchasing controlled assets, then for a failure to report a material change that did not involve a breach of the act's substantive provisions.
After the notice of violation is issued, the reporting public office holder has 30 days in which to pay the penalty or to make written representations to the commissioner. After receiving representations, the commissioner determines whether the reporting public officer did or did not commit the violation, and whether there were mitigating circumstances. As a result, she many impose the proposed penalty, reduce it, or eliminate it altogether. If the reporting public office holder does not make any representations, he or she is deemed to have committed the violation and must pay the penalty. Imposed penalties are disclosed in the public registry maintained by our office on our website.
As I have noted, the overall objective of the administrative monetary penalty regime, established under the Conflict of Interest Act, is to encourage compliance with the act rather than to punish non-compliance. This is reflected in the relatively low $500 cap on penalties, in the discretion that the commissioner has in deciding the amount of the penalty, and in the incentive to comply that comes from making penalties public.
As the commissioner has noted in a number of contexts regarding her administration of the Conflict of Interest Act and the Conflict of Interest Code for Members of the House of Commons, transparency is an important focus of conflict of interest regimes, which seek to enhance or maintain public confidence and trust in our public officials. Under the act, transparency is supported by the public disclosure of certain personal information, as well as by the disclosure of administrative monetary penalties, and the public release of the commissioner's examination reports.
Mr. Chair, this concludes my formal presentation. We will now be pleased to answer any questions the committee may have.
Good afternoon Mr. Chair and members of the committee.
On behalf of the Commissioner of Lobbying, Karen Shepherd, I am pleased to be here with you today to discuss the sanctions in the Lobbying Act and the Lobbyists' Code of Conduct.
The Lobbying Act came into force in July 2008 to increase the transparency of lobbying activities, and help raise the confidence level of Canadians in the integrity of government decision-making. The mandate of the commissioner has three key components: establish and maintain a registry of lobbyists; reach out to lobbyists, their clients, and public office holders to raise awareness about the act; and ensure compliance.
My remarks today will focus primarily on the different compliance mechanisms under the Lobbying Act and the lobbyist code of conduct.
Contraventions of the Lobbying Act are primarily linked to registration obligations. These include failing to register as a lobbyist, failing to do so within the time limit within the act, failing to provide the required information in a registration, failing to comply with a request for information, and failing to clarify or correct information in the registry of lobbyists. Knowingly making false or misleading statements in a registration or any other document is also a contravention of the act. In addition, lobbying while prohibited from doing so by the five-year prohibition in the act is also an offence. Finally, consultant lobbyists are also prohibited from being paid based on a contingency fee.
The Lobbyists' Code of Conduct was introduced in 1997. The code regulates the behaviour of lobbyists.
Under the Lobbying Act, the commissioner has the authority to amend the code. Following public consultations, the commissioner amended the code in 2015. The new version of the code came into force on December 1, 2015.
The act requires the commissioner to table a report on investigation in both houses of Parliament when an investigation into a breach of the code is concluded. In fact, she has done so eight times over the past five years.
Anyone can make an allegation and inform the office about a suspected breach of the Lobbying Act or the Lobbyists' Code of Conduct. We also identify potential breaches from our own observations of the media and other publicly available information. The commissioner takes all allegations seriously. She will initiate an administrative review or a fact-finding exercise if she suspects that a breach of the act or of the code has occurred. An investigation is opened if the commissioner believes it is needed to ensure compliance with the act or the code. An administrative review is closed when the allegation is not well founded. An administrative review may also be closed in other circumstances.
The commissioner may choose to take measures that are better suited than an investigation to ensure compliance with the act. These measures may include educating the subject or requesting that a correct be made to the registry of lobbyists. These files are also subject to further monitoring.
In cases where the commissioner determines the allegation is serious and appears to be well founded, she will initiate a formal investigation if there's reason to believe an investigation is necessary to ensure compliance with the Lobbying Act and the Lobbyists' Code of Conduct. If the commissioner has reasonable grounds to believe an offence under the act has been committed, or has been committed under any other act of Parliament, she will refer the matter to the RCMP. The act requires that.
The investigations process is similar to the investigative review process. One of the main differences is that once an investigation is initiated, the commissioner can summon witnesses to give evidence and can compel the production of documents. These are special powers that have been provided in the Lobbying Act.
When a file is referred to the RCMP, the Lobbying Act requires the commissioner to suspend the investigation until the matter has been dealt with. Once the matter has been dealt with by the RCMP or in court, the commissioner may choose to resume her examination as an investigation under the Lobbyists' Code of Conduct.
The Lobbying Act includes penalties that may be imposed upon conviction in court of an offence under the act. A fine of up to $50,000 and imprisonment for up to six months may be imposed on summary conviction for knowingly giving false information, making a misleading statement, or failing to file a return. The maximum fine goes up to $200,000 and imprisonment for up to two years for a conviction by way of indictment. If a person is convicted of an offence under the Lobbying Act, the commissioner may also prohibit that person from engaging in lobbying activities for up to two years.
The Lobbyists' Code of Conduct is a non-statutory instrument and there are no fines or jail sentences associated with breaches of the code. A report on an investigation must be tabled in both Houses of Parliament to disclose findings, conclusions, and reasons for the conclusions once the investigation into an alleged breach of the code is complete. Reports on investigation are primarily intended to expose wrongdoing and deter the lobbyist from repeating the offence. Reports to Parliament also provide an incentive for all lobbyists to comply with the act and the code.
The act requires the commissioner to refer a breach of the act to the RCMP, however there must be a strong public interest to start a prosecution. For less serious transgressions, for example late filings, the public interest is not well served by referring such a file to the RCMP. Rather, in the commissioner's view, late filings are regarded as not warranting a criminal investigation, but they do negatively impact transparency. Our office currently uses a range of compliance measures, including education and monitoring, to ensure greater compliance with the Lobbying Act. This serves our office and the public well.
Approximately 5,000 lobbyists are registered to lobby federal public office holders and every month hundreds of communications with designated public office holders are disclosed by lobbyists. Several lobbyists have been coming forward to voluntarily disclose that they were late in registering and many lobbyists disclose breaches of the act voluntarily and give the office assurance they have taken the appropriate measures to comply with the Lobbying Act.
Experience in enforcing the act does leave a question as to whether the compliance measures available to the commissioner are appropriate, given the range of possible infractions. The commissioner, in her 2011 report on the statutory review of the Lobbying Act, recommended that the act be amended to include administrative monetary penalties.
I want to thank you for your attention, and I will now be pleased to answer your questions.
Thank you, Mr. Vice-Chair.
Thank you very much to the three of you for being here today.
Part of our consideration as we go to examine the requirements of Air Canada, in addition to other airlines, is whether it is feasible and possible for private corporations, corporations that are not historically crown corporations, to both be obliged and to have the will to follow the Official Languages Act.
Is the commissioner mandated to deal with private companies? If so, can you give an example in the past where you have done this? I think it is crucial for the consideration of the probability that we can have entire sectors comply with the act.
That's the Conflict of Interest Act, yes.
With respect to the Lobbying Act, it applies to lobbyists who are required to register under the act, and the vast majority of them are private citizens. It also applies to organizations and corporations. Corporations effectively under the act are share capital corporations, and organizations include not-for-profit corporations and many other types of charities, unions, and other organizations like that.
Effectively, the answer to your question is yes, the Lobbying Act applies to the private sector and almost exclusively, although of course on the other side of the lobbying, there are public office holders because they are the ones who are being lobbied.
I can't really speak to other countries and what they're studying. I understand that the Official Languages Act applies to Air Canada and that it was formerly a crown corporation, and that requirement is in the Air Canada Public Participation Act. Under the Lobbying Act, airlines would be corporations and be required to register their lobbying activities. I can't speak to whether that airline or any other airline is registered. I suspect that many of them likely are.
In addition, an association that represents airlines or any other industry would also be required to register under the act.
The commissioner has issued guidance with respect to crown corporations, departmental corporations, and shared-governance organizations that essentially states that when those sorts of organizations deal with public office holders.... For example, under the Financial Administration Act, crown corporations have a number of requirements that they must meet; they must report to their minister. Those sorts of discussions about the mandate and the financing of crown corporations are not registerable lobbying activities.
That doesn't really answer your question that well, but that's how under the Lobbying Act these sorts of organizations are treated.
Good afternoon and welcome everyone. Thank you for giving us some new insight through your experiences.
The Commissioner of Official Languages has submitted several reports regarding Air Canada's non-compliance with the Official Languages Act. You have probably read them. Today, with your help, we are trying to determine whether we should give the Commissioner of Official Languages the power to issue administrative monetary penalties.
As I understand it, you have the power to issue sanctions, but in a different way.
In your case, Ms. Robinson-Dalpé, your powers apply to reporting public office holders.
In the beginning, when I took office and the penalties began, more people did not comply with the primary deadlines, namely the obligation to file their confidential report within 60 days. We had to do a lot of work to inform reporting public office holders of this compliance requirement. Compliance with this rule is completely their responsibility. They must complete the return and send it to us.
Initially, we sent a lot of reminders. We established a process to ensure that people would be well-informed of the rules.
In our case, the commissioner normally issues a letter within two or three days following an individual's appointment or after being advised of the appointment. Thirty days after the appointment, the commissioner's office issues a notice advising public office holders that it has not received their return and that they still have 30 days to file it. We send another reminder after 50 days, again to ensure that the public office holder returns the information within the required time. It's therefore an administrative process.
Since this process was implemented, we've noticed that people are filing their confidential reports a lot more efficiently within the required time.
I'll continue in the same vein as Mr. Choquette and follow up on Ms. Lapointe's questions.
The Commissioner of Official Languages has oversight authority over several federal departments, but does not have any coercive or dissuasive powers. In his last report, he asked us to grant him that type of power.
Let's step away from the Commissioner of Official Languages and take a look at what happens in your organizations.
If you had no coercive powers to enforce your regulations and only had the power to write reports and give written reprimands, would your work change?
There is a major distinction to be made, in my opinion. We're talking here about a public office holder, a member of Parliament, or someone working in a minister's office. The deterrent is therefore the embarrassment caused to that person. It's embarrassing to see your name mentioned in a report. The situation is different.
With the Official Languages Act, however, if someone contravenes the act and if it likely won't bother them to have it included in a report, because the situation has been going on for 20, 30 or 40 years, there's clearly no embarrassment or deterrent.
I fully understand what my colleague Mr. Arseneault wanted to know, and I agree with him. However, we're comparing two different situations, in my opinion.
If an individual receives a penalty, I want to know what happens next.
Mr. Bergen, you said that there's an appeal mechanism. Who considers the appeal? Clearly, it must be an administrative tribunal, as it's done internally. We're dealing here with administrative law. If a person receives a penalty in the form of a fine, they have the right to appeal. Can you explain how that works?
There's no doubt that we are comparing apples and oranges here. It's not the same thing. You're talking here about an individual who's embarrassed by a public report or a company that has done something wrong that could cause it a lot of problems with its clients in the future. The situation is totally different.
The commissioner, himself, referred to four possibilities. He needed to be assured that it would make Air Canada or other federal institutions assume their responsibilities.
In your opinion, are there other options that could work in the case of a violation of the Official Languages Act? Clearly, in the case of Air Canada, public reports don't work. Public reports have been published about Air Canada for years, among other things, but the situation hasn't necessarily changed.
Do you have any other suggestions to give to ensure that the official languages are respected?
You are there to enforce the laws that apply to you.
The Office of the Commissioner of Official Languages is also a government organization that is subject to the Official Languages Act and that, according to the special report submitted by the commissioner, wants to subject Air Canada to special penalties because the company is not complying with the Official Languages Act.
A suggestion was made that we are now examining. Instead of putting all our eggs in one basket and having a measure that only applies to Air Canada, why not include provisions in the Official Languages Act that apply to all federal organizations, including your own?
I ask you the question, and we asked it of the other witnesses as well. Do you think it would be fairer if all federal organizations subject to the Official Languages Act were treated in the same way, instead of only Air Canada suffering penalties, whether monetary or otherwise?
I totally agree with you that it doesn't make sense.
The idea is that the entire Canadian public service is inevitably subject to the Official Languages Act. However, it's all interrelated, in fact, so it serves no purpose for the government to penalize itself and then pay itself.
That said, the commissioner's suggestions apply only to Air Canada, which is a private company. As I understand it, VIA Rail is also subject to the Official Languages Act. However, the commissioner's suggestions rule out the possibility of penalizing VIA Rail.
Once again, I must say that I'm not defending Air Canada, to the contrary. However, why is a carrier like VIA Rail, which is also subject to the act, not penalized, but a private company subject to the act is? These organizations are both subject to the act. Is that not a form of inequity?
To my knowledge, VIA Rail is also a public carrier. I'm sure that the company has failed in the past to meet its obligations under the Official Languages Act. VIA Rail must have received complaints, just as you have received at your office, Mr. Bergen.
Mr. Bergen, you mentioned earlier that, under your current system, your commissioner was able to impose or not impose penalties. Does the commissioner have the discretion to decide whether or not a case of non-compliance warrants a monetary penalty?
I'd like to digress slightly. According to the suggestion by the Commissioner of Official Languages in his report, people would not need to substantiate the violation of the act of which they were a victim. The commissioner would be able to impose penalties even if the individual did not substantiate the offence.
Very good, Mr. Choquette.
Ms. Robinson-Dalpé, I don't at all agree with what Mr. Samson said earlier. The commissioner has filed several reports regarding Air Canada in relation to official languages. To my knowledge, none of those reports have ever been positive, or at least very few have been. Those reports have inevitably had consequences for the carrier's reputation over time. As evidence, we're sitting here today discussing a special report that the Commissioner of Official Languages tabled before leaving to tell us that Air Canada was a very poor student in terms of official languages and that a means of punishing it must absolutely be found.
I believe we've all reached the same conclusion. We've been looking at this issue for a year and a half. We've met with the president of Air Canada, who gave a very poor performance before they the committee. He was even condescending. I believe that was a fairly unanimous opinion. However, we've seen that, since then, people at Air Canada have considerably changed the way they deal with the matter. They have applied all types of measures. The report on the issue that we are now studying will also propose new measures.
Inevitably, that has an impact on Air Canada as a company and on how the public perceives it. The fact that its image and reputation are affected is, to some extent, a penalty. I believe that this report was detrimental, to some extent. Detrimental may not be the right term, but condemning Air Canada in that way was harmful to it. The fact remains that the company took the bull by the horns and adopted corrective measures, to some extent.
I'm sorry if my preamble is long, but we heard from a witness this week who has sued Air Canada several times over the last 15 years. He has even gone to the Supreme Court. According to him, the fact that Air Canada uses the term “exit” rather than sortie on a sign in an aircraft, in a building, or on its property infringes on his right to be served in his official language.
If the commissioner were given the power to impose monetary penalties and if everything the commissioner suggests in his report were done, do you think it could get out of hand?
The commissioner proposes that people need not necessarily prove the prejudice that they had suffered, such as having to read the word “exit” on a sign. They could simply file a complaint with the commissioner, and, as such, Air Canada would have to pay an amount to those people.
Are there more constructive ways to ensure that Air Canada complies with the act? It already does in part, I think
My preamble has been long. I don't know whether you want to add anything.
Unfortunately, that concludes our time with witnesses for today.
On behalf of the committee, I'd like to thank you, Mr. Bergen, Ms. Robinson-Dalpé and Ms. Koulaib, for coming to answer our questions on such short notice. You can rest assured that you have contributed tremendously to our study.
I remind you that our goal is to understand what your offices would be without the power and authority to impose real penalties. If you think of anything else, feel free to contact our analysts or our clerk by email.
I also thank you for the work you do to help maintain ethics in our society and to ensure that lobbyists abide by the law in Canada, while informing us of problems that arise here.
Thank you very much.
I don't think we have any committee business to deal with. Everything is in order for our return in a week and a half.