House of Commons Procedure and Practice

Second Edition, 2009

House of Commons Procedure and Practice - 4. The House of Commons and Its Members - Conflict of Interest and Ethics Commissioner

Conflict of Interest and Ethics Commissioner

The Conflict of Interest and Ethics Commissioner is an Officer of Parliament responsible for administrating the Conflict of Interest Code for Members of the House of Commons and the Conflict of Interest Act for public office holders. The Commissioner also provides confidential advice to public office holders, to Members of the House of Commons, and to the Prime Minister on conflict of interest and ethical matters. In addition, the Commissioner conducts inquiries into Members’ compliance with the Conflict of Interest Code for Members of the House of Commons and into possible breaches of the Conflict of Interest Act by public office holders.

When the first guidelines for public office holders were introduced in 1973, a senior public servant, the Assistant Deputy Registrar of Canada, reporting directly to the Prime Minister, was responsible for administering them. In 1994, Prime Minister Chrétien appointed an Ethics Counsellor to administer the Code of Conduct for Public Office Holders.^{^[394]} In 2004, the Parliament of Canada Act was amended to create the position of Ethics Commissioner.^{^[395]} This official was appointed to perform the duties and functions assigned by the House of Commons regarding the conduct of its Members and to administer any ethical principles, rules or obligations established by the Prime Minister for public office holders. In 2006, the title of the position was changed to Conflict of Interest and Ethics Commissioner with the adoption of the Federal Accountability Act.^{^[396]} The first Conflict of Interest and Ethics Commissioner was appointed in July 2007.^{^[397]}

Appointment Process

The Conflict of Interest and Ethics Commissioner is appointed by Governor in Council after consultations with the leaders of all recognized parties in the House of Commons and the adoption of a resolution by the House.^{^[398]} Pursuant to the Standing Orders, when the government intends to appoint a Conflict of Interest and Ethics Commissioner, the appointee’s biographical notes are tabled in the House by a Minister (or Parliamentary Secretary) and referred to the Standing Committee on Access to Information, Privacy and Ethics.^{^[399]} The Committee has the option of considering the name of the proposed appointee. If it chooses to do so, the Committee has 30 calendar days following the tabling of the biographical notes to consider the proposed appointment and report back to the House.^{^[400]} Before this 30-day period expires, a notice of motion to ratify the appointment is placed on the Notice Paper for consideration under the rubric “Motions” during Routine Proceedings, whether the Committee has reported back to the House or not.^{^[401]} The motion, when moved, is to be decided without debate or amendment.^{^[402]}

The Parliament of Canada Act establishes the qualifications for the Conflict of Interest and Ethics Commissioner. In order to be eligible for appointment to this office, the candidate must be a former superior court judge or a former provincial court judge; a former member of a federal or provincial board, commission or tribunal with demonstrated expertise in matters of conflict of interest, financial arrangement, professional regulation and discipline or ethics; or, a former Senate Ethics Officer or former Ethics Commissioner.^{^[403]}

The Commissioner’s appointment is for seven years, unless he or she is removed for cause by the Governor in Council following a resolution of the House of Commons.^{^[404]} The appointment may be renewed for one or more terms up to seven years each.^{^[405]}

Responsibilities

This Officer of Parliament has the rank of a deputy head of a government department and is responsible for the control and management of the Office of the Conflict of Interest and Ethics Commissioner.^{^[406]} The mandate of the Commissioner is two-fold: to administer the Conflict of Interest Code for Members of the House of Commons^{^[407]} and to administer the Conflict of Interest Act for public office holders.^{^[408]}

The Commissioner provides confidential advice to public office holders with respect to their obligations under the Conflict of Interest Act.^{^[409]} The Commissioner also provides confidential opinions to Members of the House of Commons about their obligations under the Conflict of Interest Code.^{^[410]} In addition, the Commissioner provides confidential advice to the Prime Minister about the application of the Conflict of Interest Act to individual public office holders and confidential policy advice to the Prime Minister on conflict of interest and ethics issues in general.^{^[411]}

The Commissioner meets with the Standing Committee on Procedure and House Affairs at its request to discuss issues of concern or areas in the Code which need clarification.^{^[412]} The Commissioner may also meet with the Standing Committee on Access to Information, Privacy and Ethics to discuss conflict of interest matters relating to public office holders or the management and operation of his or her Office.^{^[413]}

The Commissioner prepares a summary of required confidential disclosure statements for both Members of the House of Commons and public office holders and maintains a public registry of these summaries.^{^[414]} The Commissioner also prepares procedural and interpretative guidelines and forms relating to the Code for submission to the Standing Committee on Procedure and House Affairs.^{^[415]}

In addition, the Commissioner submits two annual reports to Parliament: one on the administration of the Conflict of Interest Code for Members of the House of Common,^{^[416]} and one on the administration of the Conflict of Interest Act,^{^[417]} no later than June 30 each year. The Commissioner also prepares a list of all sponsored travel by Members of the House of Commons by January 31 each year; the list is tabled in the House.^{^[418]}

The Commissioner conducts inquiries into whether a Member has contravened the Conflict of Interest Code at the request of another Member, by resolution of the House, or on his or her own initiative.^{^[419]} At the request of a Senator or a Member or on his or her own initiative, the Commissioner may also conduct an examination into whether a current or former public office holder has breached the Conflict of Interest Act.^{^[420]} If the Commissioner finds that a public office holder has violated certain sections of the Act, he or she may impose on the office holder an administrative monetary penalty not exceeding $500.^{^[421]}

Finally, the Commissioner is mandated to organize educational activities for Members and the general public regarding the Code and the role of the Commissioner.[422]

[394] Howard Wilson held this position from 1994 until 2004. He was also responsible for the Lobbyists’ Code of Conduct and for administering the Lobbyists’ Registration Act.

[395] S.C. 2004, c. 7, s. 4. Bernard Shapiro, Principal and Vice-Chancellor Emeritus of McGill University, was appointed Ethics Commissioner on May 17, 2004 by Order in Council after his nomination was ratified by the House of Commons (Journals, April 21, 2004, p. 285; April 27, 2004, p. 319; April 29, 2004, p. 348). In 2005, a motion of non-confidence in the Ethics Commissioner was moved and negatived in the Standing Committee on Access to Information, Privacy and Ethics (Minutes of Proceedings, June 28, 2005, Meeting No. 34). Mr. Shapiro resigned on March 30, 2007.

[396] Federal Accountability Act, S.C. 2006, c. 9, ss. 27 and 28. The appointment process and the mandate of this office are set out in the Parliament of Canada Act (R.S. 1985, c. P-1, ss. 81 and 85).

[397] Mary Dawson was appointed Conflict of Interest and Ethics Commissioner on July 9, 2007 after her nomination was ratified by the House of Commons (Journals, June 12, 2007, p. 1507; June 14, 2007, p. 1532; June 18, 2007, pp. 1549-53).

[398] Parliament of Canada Act, R.S. 1985, c. P-1, s. 81(1).

[399] Standing Order 111.1(1). See, for example, Journals, June 12, 2007, p. 1507.

[400] Standing Order 111.1(1). In 2007, the Committee invited the appointee to appear before it, make a statement and answer questions (Standing Committee on Access to Information, Privacy and Ethics, Minutes of Proceedings and Evidence, June 14, 2007, Meeting No. 54). See also Journals, June 14, 2007, p. 1532.

[401] Standing Order 111.1(2). See, for example, Order Paper and Notice Paper, June 13, 2007, p. III. Notice was given by the Government House Leader.

[402] Standing Order 111.1(2). See, for example, Journals, June 18, 2007, pp. 1549-53.

[403] Parliament of Canada Act, R.S. 1985, c. P-1, s. 81(2).

[404] Parliament of Canada Act, R.S. 1985, c. P-1, s. 82(1). In the event of the absence or incapacity of the Commissioner, or if the office is vacant, the Governor in Council may appoint an interim Commissioner for a term not exceeding six months (s. 82(2)).

[405] Parliament of Canada Act, R.S. 1985, c. P-1, s. 81(3).

[406] Parliament of Canada Act, R.S. 1985, c. P-1, s. 84(1). The Commissioner’s salary is set by Governor in Council (s. 83(1)).

[407] Parliament of Canada Act, R.S. 1985, c. P-1, s. 86(1). The duties and functions of the Commissioner as they relate to the Conflict of Interest Code are carried out under the general direction of the Standing Committee on Procedure and House Affairs (s. 86(3)). See also Standing Order 108(3)(a)(vii) and (viii).

[408] Parliament of Canada Act, R.S. 1985, c. P-1, s. 87.

[409] S.C. 2006, c. 9, s. 43(b). The Act requires the Commissioner to review annually with each public office holder his or her obligations under the Act and any information contained in the confidential disclosure reports (s. 28).

[410] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 26.

[411] Conflict of Interest Act, S.C. 2006, c. 9, s. 43(a); Parliament of Canada Act, R.S. 1985, c. P‑1, s. 85(b).

[412] Standing Order 108(3)(a)(vii) and (viii). See, for example, Standing Committee on Procedure and House Affairs, Evidence, October 14, 2004, Meeting No. 2.

[413] Standing Order 108(3)(h)(iii) and (iv).

[414] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 23; Conflict of Interest Act, S.C. 2006, c. 9, s. 51(1).

[415] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 30(1).

[416] Parliament of Canada Act, R.S. 1985, c. P-1, s. 90(1)(a). See, for example, Journals, June 20, 2008, p. 1031.

[417] Parliament of Canada Act, R.S. 1985, c. P-1, s. 90(1)(b). See, for example, Journals, June 13, 2008, pp. 985-6.

[418] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 15(3). See, for example, Journals, January 31, 2008, p. 365.

[419] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 27(1), (3), and (4). For further information, see the section in this chapter entitled “Inquiries”.

[420] Conflict of Interest Act, S.C. 2006, c. 9, ss. 44(1) and 45(1). The report is presented to the Prime Minister; a copy is given to the public office holder or former public office holder who is the subject of the report and the report is also made public (ss. 44(7) and (8), and 45(3) and (4)).

[421] Conflict of Interest Act, S.C. 2006, c. 9, s. 52.

[422] Conflict of Interest Code for Members of the House of Commons, Appendix to the Standing Orders, s. 32.