Good morning. This is meeting number 8 of the Standing Committee on Procedure and House Affairs for the first session of the 42nd Parliament. This meeting is being held in public. Today we're going to have a briefing from the Conflict of Interest and Ethics Commissioner, Mary Dawson.
Mary, you must be very popular, I haven't seen this room so full in a long while. I know Kady O'Malley is very excited that you're here. She'll have lots to tweet.
With Mary is Martine Richard, general counsel and acting director of investigations; Lyne Robinson-Dalpé, director of advisory and compliance; and Marie Danielle Vachon, director of policy, research, and communication.
Seeing as there is so much interest in the room, basically this committee is responsible for a mandatory five-year review of the conflict of interest code. We just did that a year ago, but we didn't do everything. We just picked the low-hanging fruit, so there may be other things that we may want to do. We're going to have that discussion next Tuesday after we hear this presentation. Next Tuesday we will discuss what the committee wants to do on this topic or amendments we want to make, if anything.
I would ask the committee members, before I forget, to come prepared to rubber-stamp the three forms that are already in place that we talked about before. Make sure you take a look at them so we don't have to have a long discussion because they're already being used and approved by Parliament, and we don't want to change our procedure of approving such forms.
With that, unless any of the committee members want to do anything else, you are all very welcome. Thank you for coming on short notice. We seem to ask everyone on short notice while we're getting organized. We appreciate your bringing your technical staff who will be able to answer some questions. The committee is always very creative in its questions, so it is great that we have a whole team here. You're on, and we'll be flexible with your presentation time because I know you have a lot of things that you could tell us.
Mr. Chair and honourable members of the committee, I am pleased to have this opportunity to appear before you, and I thank you for inviting me.
I was going to introduce my team here, but you've introduced them already. I'll mention that these are my senior management team members, and I'll mention the one who's not here today because she's just left on holidays, Denise Benoit, who's the head of corporate.
I will briefly explain my role and mandate as Conflict of Interest and Ethics Commissioner, review my past interactions with the committee, and outline my hopes and expectations for a productive relationship going forward.
As Conflict of Interest and Ethics Commissioner, I administer two conflict of interest regimes: the Conflict of Interest Code for Members of the House of Commons and the Conflict of Interest Act for public office holders. These two regimes seek to prevent conflicts from arising between the public duties of elected and appointed officials, and private interests.
The members' code and the act have similar but not identical provisions. This can be confusing, particularly in the case of members who are also ministers or parliamentary secretaries, and therefore subject to both regimes. I've recommended that Parliament consider ways in which the members' code and the act might be harmonized where possible in order to ensure consistency of language and processes.
The members' code is part of the Standing Orders of the House of Commons, the permanent written rules under which the House regulates its proceedings. It includes rules on avoiding conflict of interest, processes for the confidential disclosure of information to the commissioner, procedures for making members' summary information and other statements public, an advisory role for the commissioner, and a process for investigating alleged contraventions of the rules by members.
My staff and I review confidential reports of assets, liabilities, and activities. We maintain a public registry of publicly declarable information and investigate and report on cases of alleged non-compliance. You're in the process or have finished that first phase of your initial reporting. Our primary goal is prevention, by assisting members and public office holders to comply with the conflict of interest regimes.
An explicit educational role for the commissioner is set out in section 32 of the members' code. My staff and I undertake a number of outreach activities to inform and educate members about their obligations under the members' code and how to comply. We maintain regular contact with members and provide confidential advice on specific matters. We review with them each year their confidential disclosures and public declarations. We make formal presentations to party caucuses, and we prepare written material, such as backgrounders, fact sheets, and advisory options.
In enforcing the members' code I'm empowered to conduct formal investigations called “inquiries”. In my inquiry reports I can recommend sanctions, but it's up to the House of Commons to decide if any measures should be taken against a member for failure to comply with the members' code. Those reports are made public without any approvals by Parliament or the government.
The members' code has been amended a number of times since it was adopted by the House of Commons in April 2004. In 2007 an interpretation section was added, the reporting deadline for gifts was extended to 60 days, and there were several changes to the disclosure statement provisions. In 2008 an exemption was introduced as a result of an inquiry report of mine so that members would not be considered to be furthering their own private interests or those of another person if the matter in question consisted of being a party to any legal action relating to actions of the member as an MP. That was the issue of libel chill that some of you might remember. In 2009 the gift rules were amended in consultation with this committee and myself.
Most recently, in 2015, the code was amended in several areas. Among the changes the disclosure threshold for gifts was lowered from $500 to $200, consistent with the threshold for public office holders, the threshold for reporting sponsored travel costs paid by third parties was also set at $200, and deadlines were introduced for members to sign their disclosure summary and complete the annual review process. All of these changes related to recommendations I had made during the last five-year review.
Section 33 of the members' code requires the committee to conduct a comprehensive review of its provisions and operation every five years. The amendments made to the members' code in 2007 resulted from the first of the five-year reviews.
The second review was launched in 2012 and I provided the committee with a written submission and appeared before it to discuss my recommendations in May of that year. The committee suspended its study soon afterwards and began a new review almost three years later, in February 2015. I provided a new written submission at the committee's request and again appeared before it.
In June of 2015, the committee presented a report to the House of Commons concluding that review. The House concurred in the report later that month, and the committee's recommended amendments came into effect on October 20, the day after the federal election. They reflect, in whole or in part, 10 of the recommendations that I made to the committee, and I was delighted to see this. I note that the code is generally working quite well, but I also note that I made 13 other recommendations and would be pleased to discuss them should the committee choose to proceed with a comprehensive review of the members' code, which was expressly recommended in the June report.
The House also concurred in a new form entitled, “Request for an Inquiry”, which I had submitted to the committee for approval in 2010. I had to do that because section 30 of the members' code requires that I obtain the committee's approval for all forms and guidelines, and I felt it was very important that we have a form for members to request an inquiry.
Generally, the approval requirement has hampered my efforts to help members comply with their obligations. I cannot issue any guidelines or forms under the members' code. A notable example is guidelines in relation to gifts, an area that appears to cause a lot of confusion and prompts many questions from members.
In contrast, no approval of guidelines or forms is required under the Conflict of Interest Act for public office holders. I have issued several guidelines under the act, quite a number, actually, and public office holders have told me they appreciate having these tools. I have raised this concern with the committee in the past and asked it to consider whether there is really a need for the committee to approve any guidelines and forms that I may develop under the members' code.
In the meantime, when the members' code was amended by the House of Commons last June, a number of consequential and editorial changes were required to reflect the amended language of the code in the existing forms. Normally, I would have sought the committee's approval of the revised forms, but there was no time. The House rose very soon after the amendments were made, and then Parliament was dissolved in early August for the election.
The committee is mandated under the Standing Orders of the House of Commons to review and report on all matters relating to the members' code, and it has sought my input in recommending amendments to the House of Commons. I have appeared before the committee since becoming commissioner, although not very often. In the early years of my mandate I was invited to discuss with the committee two of my annual reports, but I have not been given the opportunity to do so since 2010. The only other occasions on which I was invited to interact with the committee was in the context of the five-year review of the members' code initiated in 2012, and I appeared a second time in 2015.
I look forward to a productive working relationship with the committee. I must say I am encouraged by the fact that the committee wished to meet with me so early in the new Parliament, even if it was on short notice.
Mr. Chair, in closing, I wish to assure the committee that I and my office are available to provide any information that it may require about any matters related to the Conflict of Interest Code for Members of the House of Commons.
I thank the committee again for inviting me to appear before you today. I will now be happy to answer any questions you may have.
I have no idea the extent to which gifts are being reported to me, so all I can use as my guidelines are the ones that are reported.
I issued a report under the act about a year ago. That brought many more questions to the fore. That report had to do with someone who left office and went and worked with.... It was the Bonner report. It was about taking a post-employment position with someone who had been a lobbyist. It drew attention to our rules. Where questions arose were with respect to receptions and the whole question of gifts.
I've always that said if you receive a dinner, that is a gift. Of course, if you receive a bouquet of flowers, that's a gift. Everything's a gift. Then the question becomes, is it acceptable? There is a lot of confusion between acceptability and reportability to begin with. A lot of people align the two and think if it's not reportable, it's acceptable. That message seems to get lost constantly.
I'm pleased to see the reporting threshold has come down to $200, because now we'll see the ones between $200 and $500.
I put forward a number of possibilities over the years as to how we could handle this. Just to give you a bit of history, when you guys made those amendments in 2010 or 2011 the rules were different. The rules said if you were given a gift that had anything to do with your job then you had to refuse it. Those rules were being totally ignored. It was like they didn't exist, and I was troubled by the hypocrisy of it all. I said we should at least look at putting out some realistic rule on gifts that people could then accept and not ignore. What happened was that we took the same rule that was in the act for the public officer holders and mirrored it in the code. It's much easier to receive a gift as a member than it is to receive a gift as a minister because there are a lot more potential conflict situations.
I'm giving you a diatribe on gifts. I hope this is okay.
One area where you can't receive gifts is if you are sitting on a committee voting on a particular matter and the person who is the stakeholder takes you to a big, fancy dinner or gives you tickets to something.
I'm just explaining the gifts, but the area that gets the most attention by people complaining about the gift rules are these receptions that seem to take place on the Hill.
Voices: Oh, oh!
Ms. Mary Dawson: Well, I suppose you could look at it that way, except I wouldn't go so far as a little shrimp or something. I've been before committees where they said, “How many shrimp will it take to make an offence?”
I said, “Look, you are being silly.” I've said that a normal courtesy cup of coffee is okay, unless it is drilled into the person every day.
You have to look at this with a little bit of common sense. It took me a couple of years to find out there were all these receptions on the Hill because nobody ever reports them. Generally speaking, for members, they are probably okay because if you're walking by and getting a glass of wine or something I'm not going to complain about that. But what I do have problems with is a significant spread being put out targeting the people who are the problem. I know there have been a number of misapprehensions about exactly what we're saying in my office. It gets a little complicated because the Office of the Commissioner of Lobbying is putting out guidelines that interface to some extent with my rules.
I may as well beat my horse here. There is a problem between the Lobbying Act, the members' code, and the act, in that the same terminology is used to mean something different. In my act, a public office holder is a minister, a parliamentary secretary, a Governor in Council appointee, or ministerial staff. In the Lobbying Act, the term “public office holder” is used to mean a whole bunch more people, including members. When statements are being made under the Lobbying Act or under my act, they are talking about different people.
Anyway, that's one of my hobby horses.
I want to pursue the idea of gifts as well, specifically in relation to the idea of events, receptions, information sessions, meetings, galas, whatever, the whole list of things that we all attend in the course of our jobs. I'm sure everybody in this room sitting around the table on both sides would say that those are important aspects of our job, important duties as members of Parliament, to meet with people, to hear information, to gather feedback, to meet with constituents, to speak at events, and a variety of things like that.
I'm still struggling a bit with some of the testimony and answers we had last time you were at committee in trying to determine what we can attend and what we can't, what is considered a gift and what is considered part of our official duties. I have a few questions. I hope I'll have time to get to them all.
I wonder if you could you give us some kind of clarification. When you were here last time you indicated that you were recommending that we make the code explicitly exclude events where all members have been invited. That raises a few questions for me. The first one is: how do we, as members of Parliament, know or determine what the invitation list was for an event? Were all members of Parliament invited? How are we to know?
That works well if it's an event taking place here in Ottawa or in the national capital region but it doesn't work so well when it's an event in our own constituency or in our region. If it's an event in one's own constituency is it then acceptable to attend if, say, the local municipal councillors and the local provincial elected members have been invited?
More broadly than that—I'll use Mr. Christopherson's example—if all the politicians in the Hamilton area had been invited, or in my case, if all the politicians in the Calgary area had been invited, would that make it acceptable?
It's really difficult for us to know when, where, and how to determine that. Could you give me some clarification?
My guidelines under the act, I think, are quite good. I've never been able to get guidelines.... I sort of gave up because of the requirement for this committee to approve stuff. But I think if I had the power, I could put my mind to it and get a guideline out.
I've had letters coming in from lobbyists and I've promised them that I'm going to get an advisory out, which I consider that I can do on my own, around some of these gifts. But you know, there's a whole bunch of different, random questions that go in different directions.
I should just point out one thing, though. If you're there representing your community, I would consider that a protocol gift, and there is an exception for protocol gifts. But it's still a gift. There's a difference between reporting and acceptability.
I think it's not a bad thing, if you're getting value.... I mean, most of these things in your community would not require a ticket of $200, I would think. It's not as though there's a plethora of these things. I agree that it's not 100% easy, but the reason it's not easy is that it depends on the individual receiving it and the relationship with the giver. You have to look at the specific cases.
Thank you. I'll leave that, I think, unless there was more to it you wanted to go to.
I'll come back to the gifts again, because it's the most confusing thing. I'm pleased to hear, and I've heard you say consistently, that on the constituency side it's not as big an issue. That doesn't mean it can't be, but in Hamilton I don't go to a lot of galas at which the price is more than $200. It happens from time to time, but really not that often.
Even when I was on city council, in more than 30 years in elected office, I don't think I've ever had to report anything involving any serious money. There were one or two items that crossed the line and triggered the reporting, but for the most part in the ridings it doesn't....
Now, here you get into a different ball game. We've talked about some of the issues: the receptions that are unclear, what is a protocol gift versus what isn't, and acceptability versus reportability. But the thing we haven't talked about, just to confuse it even more.... My friend Mr. Reid and I spent a fair bit of time...and I'm looking forward to his seven minutes on this because he spent a lot of time and was involved, I believe, in the original legislation. I just happened to arrive but he was actually part of the homework, so I defer often to his corporate history on a lot of these things.
But the stuff that comes in.... I'll walk into my Hill office on a Monday, having been in my riding, and there will be something sitting on my chair. There will be a letter and there will be some little, I don't know, key chain or a fob of some sort, a baseball cap, and a letter saying, “Hi. How are you? We are the”...whoever.
Recently we had one from the insurance bureau. I think they sent a little winter kit. I don't know the price. I'm thinking 50 bucks maybe, give or take, if that. I sent it back, based on the last meetings we had with you, because I just fear the media is going to be coming around saying they're just curious as to who followed what she said. I shipped it all back.
But you're going to hear Mr. Reid talk about the fact that sometimes it costs us more money to find out who to send it to, spend the time of staff who spent time already unpacking it and getting it ready for me when I arrived, only to have me turn around and say ship it out. There's all that time.
Sometimes you're not sure. Mr. Reid was looking for permission just to throw it out, which is an answer here, but what a waste. Really, it's like throwing 50 bucks times 338 just completely out the window, and then there's no benefit gained by somebody who might use it.
For one thing, the act deals with furthering the private interests of relatives and friends. The code only deals with furthering your own private interests. There are about three or four sections in there that I think should.... I mean, why the heck should you be able to further the private interests of your relatives and friends? That's not covered in the code.
On the business about the receptions, I said you might want to make a special rule about the receptions and have that as a carve-out in the gifts, if indeed they're all going on. Basically, I don't find most receptions problematic anyway, the ones that are open to everybody, but if it were stated in the code, it might comfort some people.
Applying an acceptability test to sponsored travel is a bit of a delicate one. That was a big foofaraw about five or six years ago. CBC tried to make something of it and they had a big scandal. But it sort of fizzled because members observed that if you couldn't accept those gifts, then you would never get to travel anywhere—which is pretty feeble, but on the other hand, there it is.
The fact of the matter is that a lot of money is spent by people on the outside, and there's no acceptability test at all as to whether you can accept this travel or hospitality from people. Often it's given by countries.
Concerning prohibiting personal solicitation of funds by members, in the act there's a prohibition against personally going out and soliciting funds. I think that would be a good one.
Then there are the two sets that I mentioned. One is the disclosure provisions, which just need to be cleaned up and for which I've given you drafts.
I'd like you to stop having to make me come here to get my guidelines and forms approved, especially the forms. What happened last June was that there were three forms that had to be fixed, because you changed the level of gifts from $500 to $200 for the sponsored travel and they were wrong. There was no time to get them to this committee, because they came into force as soon as the election was over, the day after.
Nobody was sitting then, so there was no way I could bring it anywhere. I thought the only thing I could do was write a letter to the clerk and say that I had done it and see what you can do about it. But those three.... If you want to, you could get rid of that particular issue to approve those forms. I don't see why I have to come here to get my forms approved, frankly, nor my guidelines, for that matter. It's very unusual that I have to. I leave that with you as another one.
Do you want me to keep going? I'm just seeing these things on my list.
Sanctions for failing to meet reporting deadlines is a tough one, because I think the legal analysis would be that only Parliament can impose penalties on MPs. I think that's probably a no go, and I more or less mentioned that.
Inquiries is the other area that, unlike disclosure, has inconsistencies—between the English and French, to begin with—and other drafting issues.
I have probably skipped some here, but....
I don't expressly have the power to summon witnesses or compel documents, and I should. I've never had anybody not give them to me when I've asked for them, but there should be that power. I ran into trouble in one investigation when I looked for documents from the House of Commons and they said I couldn't have them unless they were sent first to the member who was under investigation. When I received the documents, they weren't the same. I had happened to get some of those documents from elsewhere as well, and there had been deletions. That's a problem.
I talked about producing a single annual report to Parliament. I don't care so much about that one anymore, because I have it organized so that I can do both of them. I have two reports due at exactly the same time, one under the act and one under the code. It would be somewhat convenient to put them together, but I don't care very much about that one now.
Then there's that little kicker there of a code of conduct to address partisan and personal conduct of members. You've done a bit of work on the harassment thing now, but it is pretty damning on the behaviour of parliamentarians when some of their behaviour gets media attention. What the heck? It's not good for the reputation of the institution.
I comment on that, but those are two that probably would be outside of my domain.
That's an example. Those are most of them.
My impression has always been and continues to be that the problems that arise deal not with the way in which you've administered the code, but rather with the way in which the code was written. I think to some degree it was written in haste when it was designed. There are some problems that have gradually been ironed out, but in particular I think they still exist vis-à-vis section 14 of the code, which deals with gifts. That's the area you mentioned that's problematic. I was going to ask if you have your copy of the code because I'm going to suggest some ideas that might be helpful in resolving some of this.
I believe there's a problem because subsection 14(1) of the code is to some degree in contradiction to subsection 14(3) of the code. Subsection 14(3) states that gifts are reportable if they have a value of $200 or more, but subsection 14(1) reads, and I'll quote:
Neither a Member nor any member of a Member’s family shall accept, directly or indirectly, any gift or other benefit, except compensation authorized by law, that might reasonably be seen to have been given to influence the Member in the exercise of a duty or function of his or her office.
It seems to me that part—might reasonably be understood to have been given in expectation—is saying that what is important if I receive a gift is not how I'll act, but how someone assumes that the person who gave the gift to me thought I would act. It's entirely conceivable that someone would give me a gift that's under $200, which may have been intended to who knows how affect me but that is not realistically, plausibly going to have that effect.
I wonder if we could resolve part of the gift problem by adding something that says this. It would be a subsection that would go after subsection 14(3). It would have the number subsection 14(3.1) possibly, and it would say, “For greater certainly, a gift or other benefit that does not require disclosure under subsection 14(3) shall be deemed not to be capable of influencing the member in the exercise of a duty or function of his or her office.”
Would that to some degree accomplish dealing with problems with that?
The question is whether there's a disclosure requirement. That's my question.
I'll give you an example of one. The recently attended the Dragon Ball. That is not a cheap ticket. I was sitting at the table of, let's say, a large financial institution. Originally, they invited me, and I said, “I can't accept that.” Subsequently, I was invited by the organizers of the event, and I ended up getting seated at the same table of that large financial institution. I didn't know whether they were lobbying the government or not. Do I have a disclosure requirement? That's where I'm scratching my head.
Ms. Mary Dawson: Yes, the value of the ticket.
Mr. Arnold Chan: I do have a disclosure requirement—
Ms. Mary Dawson: Yes, you do.
Mr. Arnold Chan: —even though it's a charity and it's raising money for older people. This is the Yee Hong Community Wellness Foundation and there was a significant amount of monies to obviously—