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Richard Aucoin
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Richard Aucoin
2015-01-27 16:32
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Thank you, Mr. Chair.
Good morning, Mr. Chair and honourable members of the committee. My name is Richard Aucoin, and I am the executive director of Health Canada's Pest Management Regulatory Agency.
I am very pleased to be here today to provide some opening remarks about the Pest Control Products Act as you begin your review.
I am accompanied today by my colleagues from PMRA, Connie Moase, director of the Health Evaluation Directorate, and Jason Flint, director of the Policy, Communications and Regulatory Affairs Directorate.
PMRA regulates pesticides in Canada under the Pest Control Products Act, on behalf of the Minister of Health, with the primary objective of preventing unacceptable risks to both people and the environment from the use of pesticides.
This is achieved, first and foremost, through a comprehensive science-based pre-market assessment and approval process. In addition, the act provides for post-market activities, such as cyclical re-evaluations, special reviews, monitoring, and compliance and enforcement activities.
The current act was revised in 2002 and was brought into force in 2006. There were three main objectives for the new PCPA: to strengthen health and environmental protection; to provide a very transparent regulatory system; and to strengthen the post-registration control of pesticides.
I would like to take a minute to give examples of how these objectives are met by the PCPA.
Mr. Chair, in 2006 the act was strengthened to provide the authority to regulate pesticides through their entire life cycle, including the removal of pesticides that can no longer meet modern scientific standards. Pesticides can be inherently hazardous substances, so we must take particular care in how we do our scientific reviews to ensure that there are no unacceptable risks. For example, we are required by the Pest Control Products Act to take into account potential pesticide exposure from all sources, including food, air, and water. This gives us the most accurate picture of the potential risks associated with the use of pesticides.
Some Canadians, such as children, pregnant women, and the elderly, may be more sensitive to the effects of pesticide exposure. As such, the Pest Control Products Act requires that additional margins of safety be applied to protect these potentially vulnerable populations.
Science is continually evolving, and new risk assessment methods are being developed all the time. It's important that we keep up to date on these new approaches so that we can ensure the highest degree of protection for Canadians. While the act is very prescriptive in its approach to health and environmental protection, it also provides for some flexibility to incorporate new science and new processes in a rapidly changing regulatory environment. lt also allows us to more quickly and efficiently establish food safety standards. For example, we establish maximum residue levels for pesticides in food under the Pest Control Products Act directly.
A second important area in which the current law was updated is in the area of transparency and openness. Very specific provisions of the act mean that our regulatory activities at PMRA within the department are very accessible to the public. We hold over 30 public consultations each year on all our major regulatory decisions. For example, before we make a major regulatory decision on a new pesticide, we post for consultation the outcome of our scientific reviews and consult with the public to see if they have concerns, comments, or additions. As well, the public can inspect the scientific test data and the information on which we base those decisions. Through these mechanisms, Canadians have the opportunity to voice their opinions and concerns regarding proposed regulatory decisions. The PCPA also contains mechanisms that allow any member of the public to ask for reconsideration of a major decision, provided, of course, it's based on scientific grounds.
Canadians can also search our electronic public registry for a wide range of information on approved pesticides. The registry contains records of PMRA's decisions and consultations on the approved products; the strict conditions of use that we impose on pesticides; the product labels, which are a required part of our approval process and highly prescriptive; and our regulations, our policies, our guidelines, and our directives.
The third important area in which the regulation of pesticides was strengthened under this act was specific provisions of the act that support our ability to monitor any effects of pesticides after they've been registered and are being used under real-world conditions, and to take regulatory action as necessary.
For example, under the act there's an obligation to re-evaluate all pesticides on a 15-year cycle. This allows us to assess whether they meet the most current environmental and health standards, and to mitigate any new risks identified. This can include changing the allowable uses of a pesticide. That is, we can withdraw specific uses of a pesticide if it no longer meets our standards.
The current PCPA also has extensive regulation-making authority that allowed us to introduce new regulations regarding the collection of post-market information on pesticide use and effects, through mandatory sales and incident reporting. Manufacturers have been reporting sales volumes of their products since 2008. Sales data like this can be used to estimate national use patterns or trends, and this information is very highly useful in the post-market assessment and monitoring of products.
Our incident reporting program, in which the manufacturers are required by law to report incidents, has been in place since 2007. Members of the public can also report to us through the Internet or other means if they are aware of specific incidents. The program gives PMRA valuable information on any unintended effects of pesticide use, and allows us to take action when risks are identified. Incidents are often the result of the intentional or unintentional misuse of products, and patterns in incidents can help us plan the best course of action. This information can lead us to engage in outreach activities and perhaps clarify label requirements to make consumers more aware of the importance of using the correct products, and using them according to very specific label directions.
PCPA allows PMRA to carry out a robust compliance and enforcement program that gives us the power to inspect anyone regulated under the act, including manufacturers, users, and retailers; and the capacity to enforce compliance with our regulations using measures appropriate to each situation. That can mean anything from education and outreach campaigns, to very significant monetary penalties.
Today, Mr. Chair, the Pest Control Products Act continues to afford PMRA the flexibility to adapt to changes in the regulatory climate both at home and abroad. As science evolves, new products are being developed, new risk assessment and new risk management approaches are being developed cooperatively in multiple countries. Joint science reviews are the norm when it comes to evaluating new pest control products. In fact, Mr. Chair, approximately 50% of the work that we do in evaluating brand new pest control products in Canada is done in collaboration with one or more OECD countries such as the United States, Australia, the U.K., etc. This international regulatory cooperation creates efficiencies in getting the most innovative and safest products to market faster, and I think importantly ensures Canada has both access to and contributes to the best science in the world when it comes to pest control product risk assessment. Developments in information management and technology are also facilitating registration, data sharing, monitoring, and stakeholder engagement.
The Pest Control Products Act provides authority to protect health and the environment, to monitor pesticides under real-world conditions, and to take action when the risks are identified. Through the transparency provisions of the act, Health Canada is accountable to all Canadians, who are relying on and counting on a strong pesticide regulatory framework.
ln conclusion, Mr. Chair, we believe that the current PCPA continues to be a solid foundation for the delivery of a pesticide regulatory system that is protective of both the health of Canadians and their environment.
Thank you.
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View Terence Young Profile
CPC (ON)
View Terence Young Profile
2015-01-27 17:17
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Thank you.
This committee just completed a study of Vanessa's Law, which is now the law of Canada and is all about transparency and openness with regard to keeping Canadians safe when using prescription drugs. That will empower researchers, doctors, and even patients to get the information they need to keep themselves safe or keep their patients safe. What has the PMRA done to increase transparency and openness to help keep Canadians safe?
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Richard Aucoin
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Richard Aucoin
2015-01-27 17:18
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Well, as I think I indicated in my opening remarks, there are a lot of good provisions—some really good, solid provisions—and obligations in the Pest Control Products Act for us to be transparent and open with Canadians. Not only do we have to consult with Canadians on the data and the science we've used to make our regulatory decisions for new chemicals, but also for older chemicals, when we're looking at them, what we're finding, and how that science influences our decisions.
We also have been really open with, for example, what we are currently looking at in PMRA. What pesticides are being proposed for use in Canada? We have a public registry where you can find that information and ask what PMRA is doing right now and what they are looking at. A lot of information is on there now in terms of us having a compliance and enforcement program. What are we finding? Are there violations of the Pest Control Products Act? What are we doing about those?
As I forgot to mention right at the outset, I think this committee has received a copy of our annual report. That alone is a full disclosure of all our activities through the year, including, for example, our incident reporting program, what we are seeing every year in terms of the nature of the pesticide incidents that are being reported to us. We're very transparent and open in terms of what they were and what some of the actions are that we're taking as a result of those incidents.
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Brian Forbes
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Brian Forbes
2014-04-01 18:41
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Yes, exactly, you have a very good question.
The minister has suggested, until very recently, that he has a hands-off attitude with regard to the class action lawsuit in the British Columbia Supreme Court. If the Department of Justice wants to argue that there's no social covenant, it's apparently his position that he will not intervene, he will not issue an instruction to take that off the table. I find that objectionable.
It is the minister's responsibility as the Minister of Veterans Affairs to instruct the Department of Justice as to the position they will take in a legal suit that is being brought by a group of seriously disabled veterans. We find it offensive that the minister has not intervened. It's not the Department of Justice that argues principles for the government, it's the ministers of the various departments that have to instruct.
We've been on the other side of these cases for many years and we have found that ministers have been involved, so we're somewhat dumbfounded as to why this minister has had a hands-off attitude.
I hope that answers your question.
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View Peter Stoffer Profile
NDP (NS)
Yes, sir.
I have a couple of things for you, sir.
Mr. Jenkins mentioned the number of recommendations that your organization and a number of others made with the Gerontological Advisory Council a few years back. He noted the number of recommendations that have been put forward and how very few of them have actually been accepted. I'd just like your view, the Royal Canadian Legion's view, about why there has been a reluctance to accept some of these recommendations...the other ones that have been there. Also, I have another question and it's for both of you. I'll ask the Legion first and then, Mr. Jenkins, you can answer second.
In the Equitas lawsuit, the crown attorneys who were representing the Crown—and I'm paraphrasing them—stated under oath that there was no moral obligation for the crown to care for veterans. I'm paraphrasing more or less what they said. Basically that moral obligation applies only to the aboriginal community.
Obviously many veterans organizations across the country were quite concerned when they heard this. The judge hearing the case indicated that there was an obligation to care for those veterans in that regard. My question, which I've been asking quite repeatedly, is this. Does the government have a moral, legal, social, and financial responsibility to care for those they asked to put themselves in harm's way? I haven't gotten an answer on that question even though this is now the eighth time I've asked it. I'm wondering what the Royal Canadian Legion's view would be on that as well.
I thank you again, you and all the other veterans groups, and especially Mr. Richard Blackwolf, an aboriginal veteran who is here today, for being with all of us. I thank you.
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Gordon Moore
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Gordon Moore
2014-03-06 16:07
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Mr. Stoffer, the Royal Canadian Legion's view on the moral obligation is that the government has a moral obligation to look after our veterans and their families, right to their last moments.
The government of the day has put them into harm's way, whether it happened 20 years ago or whether it just happened recently with them being in Afghanistan. The government has to understand that you're the one who asked them to sign the dotted line; you're the one who paid to have them trained; you're the one who paid to send them overseas; and you're the one who said, yes, you're going to go and fight for democracy, in Afghanistan, or wherever they had to go. Yes, the government has that moral obligation and they will.
As I stated in my report, there are three acts that state that the government has the moral obligation. When the new Veterans Charter was written, the moral obligation was kept out. That's the only place. No one at the time caught that. That's very unfortunate because it was something that came across that it had to be put into place because we had men and women serving in Afghanistan, we had to make sure that we were prepared back here, and this is how they sold the bill. We had to be prepared back here when our soldiers returned. But we had to be ready in how we're going to look after them, on the short term and also in the long term.
Mr. Stoffer, they've been looking after them in the short term, but they haven't been doing a good job on the long term. The moral obligation has to be there all the way through.
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View   Profile
2014-03-06 16:09
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A good example of moral obligation is the United Kingdom government signed, about two years ago, their social covenant with their military on how it was going to respond to their needs once they had been deployed and moved out and possibly injured and returned home. Perhaps what the Canadian government needs to do is to also have a social covenant with those who serve its country.
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Gordon Jenkins
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Gordon Jenkins
2014-03-06 16:10
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I'll be very brief. I couldn't put it any better than these two gentlemen to my right. I would like my response to be exactly the same as Gord's and Brad's.
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Percy Price
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Percy Price
2014-03-06 16:10
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Thank you, Mr. Chair.
I'm sure you're well aware of the fact that those veterans who served in Canada only, they're under section 21(2) of the Pension Act. In the act under section 21(1), where there's a special duty area, Afghanistan, there shall be no deduction in injuries or whatever. If it occurs in a special duty area or in the theatre of war, the government is solely responsible and obligated to provide pension for that veteran.
However, under the other section, in Canada—not those war time or special duty areas—that would be a different issue. Certainly in war time or special duty areas, the government is solely responsible.
Thank you.
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View Sylvain Chicoine Profile
NDP (QC)
Thank you very much, Mr. Chair.
I would also like to thank our witnesses for joining us today.
Let me go back to what you were saying about the fact that it is time to take action right away to improve the New Veterans Charter.
Since we are conducting a comprehensive study and we are going to produce a report in several months in the wake of which the minister will prepare a bill, would it not be desirable for the minister to start right away to improve the new charter given that everyone agrees with the ombudsman's recommendations?
Would it be in the minister's interests to start right now to improve the new charter based on the ombudsman's report, granted that it may involve other changes in a year after the comprehensive study?
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Gordon Jenkins
View Gordon Jenkins Profile
Gordon Jenkins
2014-03-06 16:31
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I think the minister already has a list of recommendations and we cannot help but wonder why another series of recommendations is necessary.
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View Sylvain Chicoine Profile
NDP (QC)
Thank you.
The government is saying that it recognizes that duty and that it is included in the new charter.
Can you comment on that?
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Jim Scott
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Mr. Jim Scott
2013-12-10 11:49
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Sorry, when you say “duty,” which duty are you referring to?
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View Sylvain Chicoine Profile
NDP (QC)
Yes. I am talking about the government's sacred duty to take care of wounded veterans.
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View Ted Opitz Profile
CPC (ON)
View Ted Opitz Profile
2013-12-10 12:15
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Thank you, Mr. Chair.
First of all, thank you all for appearing today. I'm on the defence committee normally, and Mr. Kirkland visited us there not that long ago. In fact, the defence committee is conducting a study on the care of the ill and injured. We were actually in Petawawa last Thursday, touring the JPSU and some of the facilities there. And I was in Shilo a couple of month ago for a different event, but took the opportunity while I was there to look at some of the issues that are going on in Shilo.
That just illustrates that all of us in the House are very interested in making sure that this is right by veterans, and we're working very hard to do that.
To that end, sir, Minister Fantino announced that he would invite the veterans to the committee here for you to be able to air your concerns to Parliament, which you're doing today, which is fantastic. But at that time, did you expect the minister to ask us to bring forward recommendations on new language to be added to the new Veterans Charter capturing the duty, the obligation, and the commitment of the Government of Canada towards Canadian veterans?
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Jim Scott
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Mr. Jim Scott
2013-12-10 12:16
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That's a good question. A lot of people have asked what the solution is, and I've always said to every person, “Just acknowledge that there are some gaps, acknowledge that there are some problems, and then seek to close those gaps and those problems”. One of the concerns I have is that, when you go into a review process with predetermined ideas already in mind, it really doesn't make the review process that valid—in other words, if you say, “This is going to be the outcome; now have your review”. We're very open to what this committee does. There is just the fact that we want to raise, that for whatever reason we got down this road, we now have hundreds of people who have contacted us and they have bona fide cases of gaps in their benefits under this program.
What does the solution look like? I would hope you will be able to offer those solutions.
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View Jim Karygiannis Profile
Lib. (ON)
Mr. Scott, I want to ask the three servicemen.
Do you think your government is truly representing you? Do you think that truly your government is looking after you today?
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Aaron Bedard
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Aaron Bedard
2013-12-10 12:50
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I think everyone is here doing their job. It's a complex world, however, and PTSD goes on forever. Every day is a new day. I'm 40 years old. I got in after working construction for 15 years. I argue and fight with anybody who I see doing something that could kill others.
What was the question?
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View Jim Karygiannis Profile
Lib. (ON)
Is your government doing the best for you in representing you? Do you feel we're doing the best for you, or are we letting you down?
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View Jim Karygiannis Profile
Lib. (ON)
Thank you, Chair.
I'm glad you pointed out, sir, that the old pension was non-taxable and the new one is taxable.
I'm going to pick up on Mr. Rafferty's point about the closing of the VAC centres. There are going to be 27,688 vets who will be affected by the closing of these centres. We are told that there are all kinds.... I mean, for My VAC—this portfolio, I think, is what you or some people referred to—people can actually go online, use phones, go in person, use mail, and whatever else there is.
With the closing of these centres, how would the older vets, vets who are 80 or 90, be able to get assistance? We get from the department that there are 600 points of reference and that they're going to do this.... You even mentioned that you're going to train personnel in service centres. But there is a feeling out there that you can't trust VAC. That was certainly obvious when it was mentioned to them that 27,388 boxes of medical records were destroyed, and they kept saying, “No, no, nobody was affected.” Then vets were coming up and saying, “We've lost our records.” That was proven.
My question is, how can the department be trusted when time and time again it has shown that their methods and their figures, as well as what they do, are incorrect? I mean, breaching personal files of Dennis Manuge, Harold Leduc...I could go on ad infinitum. How can the department be trusted? I know you might not want to answer this, but you are even reporting to the minister that you, your shop, should be reporting directly to the department.
I'm going to put it out there. I don't think that what you get from the department is something that you can take home and say, “this is it”, you know, it's firm, because time and time again they've been caught not saying the truth. They've been caught misleading and even doing stuff to members of their own board, such that in the private sector they'd be fired. I mean, for breaching somebody's medical records, you would be totally fired. I'm just wondering if you have a comment or any thoughts on that.
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Guy Parent
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Guy Parent
2013-11-28 12:27
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Well, it's very hard, of course, for me to comment. As I've mentioned many times before, we're obviously an evidence-based organization. For any personal situation and anything that is factual, if people want to contact us, we will work to try to resolve it. If there are negative things that have to be said to the department, that's fine. We'll get some corrections. There have been a few instances in the past where we've produced reports or changed the way that programs were administered because of actually challenging the department on some issues.
Obviously, we have a capacity for systemic investigation and systemic reviews. Again, I urge people, if there are any veterans and families who have specific issues they want us to look into, that's what we're there for.
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View Scott Andrews Profile
Ind. (NL)
View Scott Andrews Profile
2013-03-18 16:00
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With the non-interference with judicial and quasi-judicial, are you suggesting that apply to all MPs, not just ministers and cabinet ministers?
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Adam Dodek
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Adam Dodek
2013-03-18 16:00
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I think the problem with that principle, and the distinction between an MP's role representing their constituents and an MP's role as a minister or a parliamentary assistant or minister of state, is, again, the public has difficulty distinguishing between those roles. They rightly see a person who represents a constituency, a geographic constituency, a riding, who also happens to be the minister with responsibility for a particular portfolio. I don't think that the problem is cured by a minister signing something as an MP instead of as a minister. In some ways it might be beneficial to MPs if they were able to just say to their constituents, “You know what, I'm sorry, I really would like to help you, but I can't. I'm prohibited by law from doing this.”
I think that probably most MPs know that writing a letter on behalf of a constituent to a quasi-judicial...or certainly in a court proceeding is likely not going to have much impact, if any. In some ways it could get MPs off the hook from that.
I would favour probably a broader prohibition than even the one that exists now in the accountable government.
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Yves Boisvert
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Yves Boisvert
2013-02-25 15:38
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Similarly to my colleagues, I will give you a few recommendations, but from a significantly different perspective, as I will refer to political science research. We have cross-referenced analyses of scandals, of the institutionalization of government ethics measures and of recommendations made by international NGOs, including the OECD.
The objective was to raise the main concern, whereby the existence of provisions was no longer sufficient, and the effectiveness of those provisions now had to be assessed. That is something our parliaments have not worried about thus far. The main concern was to implement measures, establish a piece of legislation and appoint a commissioner, but very few tools have been provided to ensure that the measures enable those in charge to fulfill their mandate and their mission. When it comes to that, I agree with my colleague who was worried about the strength logic. Our analyses of Canadian federal provisions clearly indicate that those responsible for enforcing laws and regulations in ethics and integrity are not able to truly carry out their mandate, owing to a lack of financial and human resources. I think that this is one of the main concerns when it comes to ethics and integrity.
The expectations and goals of such a piece of legislation should be set out much more clearly in the preamble. Beyond the shopping list of very technical expectations regarding public office holders, it is unclear whether those laws have highly specific goals, which consist in maintaining the integrity of public decisions. I think it's essential to begin by pointing that out. I believe we need to move on from the logic of technical laws in favour of more living legislation, whereby we would aim to implement legislation on ethics and integrity.
Usually, four objectives should be pursued. The first is the socialization of targeted individuals; the second is the development of public office holders' ethical competence; the third is the clarification of deontological rules and expectations; and the last is increased severity of punishment. Without severity of punishment, those provisions will completely fail to convey to public office holders the government's prioritization of those aspects.
Our analysis of scandals indicated that the clarification of the following three points should be a priority in your legislation. For starters, special interest should be defined. Unfortunately, legislation often tends to refer us back to issues of personal, even financial, interest even though special interests are much more important and broad. Many political and administrative scandals, in all OECD countries, involve issues that stem from political party financing. In such cases, the public decision is negatively influenced, and political parties choose special interest. It should be very clear that special interests go well beyond the direct interest of the public office holder and their family. We see in the legislation that the scope is basically fairly limited. That gives rise to a considerable problem. Special interests can be completely outside the public office holder's private sphere. This aspect requires some serious thought.
Gifts and other benefits make up the second point. That issue was fairly absurd during the 1980s and 1990s because no one could understand that gifts could greatly influence public decisions. Our scandal analyses showed, surprisingly so, that the increasingly frequent acceptance of gifts was one of the major flaws. I invite you to look at the work done by the Charbonneau commission. I can guarantee that the increase in gifts to public servants was a very significant phenomenon.
As the OECD indicates very clearly, gifts are always a gateway to corruption. In other words, failing to take gift giving seriously leaves the door wide open to the gradual acceptance of corruption.
Today, the debate no longer consists in figuring out if the gift is worth $100 or $200, but in determining whether it's still tolerable for public office holders to accept gifts—regardless of their nature and value. As anthropologists say, a gift is never free; it always leads to expectations of a counter-gift. Anthropologists could show you very clearly that this is part of cultural dimensions.
One last matter appears crucial to me. Considerable revision is needed in a very porous aspect of all laws—post-employment. That's probably one of the weaknesses common to all legislation that has to do with the management of public office holders' conflicts of interest. Those in charge of managing post-employment issues should be provided with considerable capacity. It's clear that your current legislation and the budgets allocated to the commissioner probably do not provide sufficient leeway for managing post-employment cases.
Post-employment issues, especially in Quebec, were rather problematic on several levels—in Montreal alone. In a number of cases, 100% of senior officials and a few elected officials immediately obtained positions within companies involved in certain problematic cases. So the management of post-employment is a considerable issue.
In Quebec especially, the lobbyist commissioner is having a very hard time managing post-employment. Those in charge tend to only define the post-employment aspect related to lobbying, even though post-employment may be much broader. We may be talking about simple compensation for a past decision that has nothing to do with lobbying. In that case, the gift involved is huge. We are talking about compensation of several hundred thousand dollars in a prestigious position within a company where a transaction did take place. Those are not illusions, but rather realities that exist in a number of OECD countries.
I would like to raise one last issue I worry about. I am talking about the need for governments to provide real tools to those in charge of ethics and integrity. It's time to stop implementing legislative tools with overly limited budget envelopes and staff. That's something we have seen repeatedly in a number of government institutions.
The challenge lies in providing the organization that manages ethics and integrity cases with effective tools and, if possible, encouraging parliamentarians to get involved much more directly in the implementation of a regulatory system dynamic.
Whether we are talking about the management of lobbying, ethics and conflicts of interest, or disclosure, parliamentarians could provide us with a much more effective regulatory system if there was at least some coordination among them and much more narrow collaboration. Canadians could finally regain some confidence in their political and administrative institutions.
Thank you.
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View Charlie Angus Profile
NDP (ON)
View Charlie Angus Profile
2013-02-25 15:54
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I was looking at your brief. You also made a statement about the obligation of government to report each breach.
How do you frame that?
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Guy Giorno
View Guy Giorno Profile
Guy Giorno
2013-02-25 15:55
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Right now, section 19 of the act says:
Compliance with this Act is a condition of a person’s appointment or employment as a public office holder.
We know that right now, under the few sections, the 13 of 44 rules for which there can be penalties, there are breaches. In the last 12 months alone the commissioner has found 17 breaches. It appears there has not been any follow-up on these. We know, for example, that those 17 public office holders were not removed from appointment or employment as a result of the breach. As far as we can determine, there was very little attention paid in Parliament to those breaches and very little attention paid to them in the news media.
As a matter of the rule of law, there must be consequences attached to breaches. Our recommendation is that when a breach is found, in addition to the penalty, the government that employs or appoints the individual will have to respond to the breach, having taken into account the breach and taken into account section 19, which says that obeying the act is a condition of employment or appointment, by saying either “We're going to maintain the employment or appointment, and here is why”, or “We're not going to, and here is why”.
What is not acceptable, in our submission, is for breaches to be found—again, there's a small number of rules for which there can be penalties under the act as it now stands—and for nothing to happen as a result of them.
We make a recommendation that applies to the government, although in our brief we comment on the absence of scrutiny in Parliament and in the news media of these breaches. If this is a significant and serious act, then breaches are significant and serious and attention ought to be paid to them.
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View Patricia Davidson Profile
CPC (ON)
Thank you.
Thank you very much for your presentations this afternoon. They've been extremely interesting. As you can well imagine, this is a topic on which we're hearing many different opinions, but we're hearing some common ones as well, and that is very helpful.
Mr. Boisvert, you talked a bit about the clarifying of personal interests. You felt this needed to be one of the priorities. Do you feel that it should be clarified as a definition, that it should be better defined in that manner? Are there other definitions that need to be looked at as well?
Could you comment on that, please?
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Yves Boisvert
View Yves Boisvert Profile
Yves Boisvert
2013-02-25 15:57
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You used the words “personal interests”. That expression is barely used nowadays because people are increasingly using “special interests”. Special interests are at play. The shift from the dimension of personal interests to that of special interests already significantly broadens the interests that may be called into question when a public servant's decision is influenced.
I talked about political parties in my example. Does prioritizing or accepting some influence on a public decision because we want to place our political party in a favourable situation that enables it to receive funding constitute a problem? Earlier, we discussed the whole issue of gifts that is absent. However, regarding that legislation, I think a debate should be held to clarify the aspect of political party funding. Focus should be placed on the actions taken by public office holders, especially ministers, in terms of funding.
To quote Quebec, ministers did have profitability standards to meet in fundraising, and that could lead to all kinds of pressure and negative perceptions. From that point of view, we could have a very negative perception of the idea that someone may have had undue influence on a public decision solely for the purpose of helping their political party acquire funding more easily. That already implies a broadened scope, which is well beyond a public office holder's direct personal interest. We have crossed over into the area of special interests.
There are other cases we found interesting, where public office holders' family members and presumed friends seemed to garner certain favours. Are those not special interests related to a family network—a close network as described here? The expression of a broadened special interest could bring us to question the validity of a public decision that would favour friends. As we jokingly say back home, Mr. Accurso had a huge number of friends. Everyone was Mr. Accurso's friend. That raises the following question. How could decisions have been negatively affected with regard to that? In any case, when it comes to perception, Canadians have the right to ask questions.
Given that such a piece of legislation is being discussed again and questioned, I feel that special interests must clearly be broadened to determine what types of interests could be favoured by unfair and inequitable decisions for Canadians.
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View Charmaine Borg Profile
NDP (QC)
I really appreciate your opinion on the issue, but I only have five minutes.
All three of you are welcome to comment on my next question.
Mr. Boisvert, you mentioned that we should clarify what personal interests are. Clearly, I am not asking you to give me the definition of what you would like to see implemented. Instead, could you tell us what a better definition would be and whether there is an international model that works well?
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Yves Boisvert
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Yves Boisvert
2013-02-25 16:34
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At the institutional level, I agree with my colleagues. I think all governments are in a conflict of interest when the time comes to define their legislation. We do not have a major reference point because all public office holders across the world take advantage of their situation to weaken the legislation that governs them. So we would have to turn more to international organizations for solutions. In terms of broader personal interests, we have to think about so-called “factual situations”.
For instance, community networks, association networks and interest groups could benefit from decisions in their favour as a result of belonging to the public office holder's local network. In that case, it is not a question of personal interests, but rather of the influence of the public office holder's local network, which will go well beyond their traditional private sphere as set out in the legislation, meaning their children, spouse and their immediate network. So it is the broadening of their network.
Debates often deal with political parties, friendship networks, association networks and interest group networks. At that point, situations come up, where we can often see that those expanded local networks received interesting favours. The idea is that favouring the interests of these local networks goes against the public interest.
In the present debate, we are talking about conflicts of interest. We must never forget that, in public life, conflict of interest means acting against the public interest to serve a personal interest. So a public decision is not made for the common good, but rather to serve a personal interest. That is the essence of the debate.
I said that this should be made clear in the preamble of the legislation. At all times, a public decision is always used as an indicator to assess whether there is a conflict of interest or not. The decision is made to promote the common good and the public interest, not to serve all kinds of personal interests. I think that we are reviewing the logic of the legislation in part by broadening this dimension.
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View Brad Butt Profile
CPC (ON)
Thank you very much, Mr. Chair.
Good afternoon, ladies and gentlemen. Thank you very much for being here and appearing before the committee for what I think is an important statutory review of the Conflict of Interest Act.
One of the things we're finding out as a committee is that there are some similarities and also some conflicts and differences between the Conflict of Interest Act and the Lobbying Act. I'm going to assume that both of you learned gentlemen are familiar with both pieces of legislation.
The committee has found that the term “designated public office holder”, which is housed within the Lobbying Act, has many similarities to the term “reporting public office holder”. If they were to be more aligned, if we were to get a better definition so that they were covered in both acts, which act do you believe would maintain a better single, symmetrical definition of those individuals?
Do you want to start, Mr. Giorno?
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Guy Giorno
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Guy Giorno
2013-02-25 16:38
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Thank you.
The CBA's position, under both the Lobbying Act and the Conflict of Interest Act, is that post-employment restrictions should be harmonized for the reason the member alluded to, so there's greater understanding and clarity administered by a single person. That said, and there's always a “but”, the task of harmonization is actually quite challenging and difficult.
The Conflict of Interest Act right now imposes restrictions not just on paid lobbying but on unpaid lobbying for a shorter period of time. The Lobbying Act imposes restrictions on all lobbying, but it has to be paid for a longer period of time, and then it exempts people who work for corporations and who don't lobby 20% of their time. A decision has to be made as to whether, in harmonizing, it is more important to go after the paid lobbying for the longer period or unpaid lobbying immediately after you leave.
“Designated public office holders” is in fact the wider class. “Reporting public office holders” includes only public servants who are appointed by order in council. That's deputy ministers and people with the deputy minister rank, whereas the designated public office holder position goes to the level of assistant deputy minister.
The CBA actually has no position on how to harmonize, but I do stress that the DPOH, the so-called designated public office holder, category is broader, so it would cover more people. While there is no official CBA position on this, obviously, in the interest of covering more...harmonizing, in one way, would cover fewer people and therefore be less likely to achieve the purposes of either statute.
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View Brad Butt Profile
CPC (ON)
A question before my time is up, very quickly.... When we had Mr. Wild from the Privy Council Office, before we had you as a witness today, he intimated that there are really two processes here for accountability. One is political accountability at the end of the day through the Prime Minister and the Prime Minister's Office, because ministers are appointed by him, they serve at his pleasure, and there's political accountability. But at the same time, obviously, through this piece of legislation and others, there's legal accountability because they are ministers of the crown or because these are people appointed by governor in council appointments, etc.
Do you think that's a fair judgment on how the system does work? At the end of the day, really, it's political accountability that the public is going to judge, through the Prime Minister and how cabinet ministers operate, but, yes, there is also a need for some legislative tool to deal with some of these issues and set some guidelines at the same time.
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Lorne Sossin
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Lorne Sossin
2013-02-13 17:10
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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.
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View Charmaine Borg Profile
NDP (QC)
Thank you very much.
In one of your essays, you talked about political or partisan no-go zones, saying that respect for those boundaries was currently on the decline. How do we fix that? Are there certain changes we can make to curtail partisanship, which seems to be on the rise?
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Lorne Sossin
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Lorne Sossin
2013-02-13 17:14
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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.
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Duff Conacher
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Duff Conacher
2013-02-06 15:31
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Thank you very much for this opportunity to testify on one of the most important democratic good government laws that exists in any country, including in Canada, namely the Conflict of Interest Act. I welcome this opportunity, slightly overdue, for this five-year review of the act.
First, just to anticipate questions that I usually get when I appear before a committee, and so we don't have to spend time answering them later, I'm here as a representative of the Government Ethics Coalition. It's a coalition made up of just a bit more than 30 organizations from across the country. The total membership of the organizations is over three million Canadians. We've been working together as a coalition now for more than a decade pushing for changes both to ethics rules and lobbying rules. As some of you will likely remember, I was here almost exactly a year ago testifying on the Lobbying Act.
As with the Lobbying Act, I see that the committee and the government has a simple choice. We're recommending 30 changes to the act. You will not have received my brief. Essentially I took a bit longer with the brief because I wanted to review the Ethics Commissioner's report, which was not short. I just got the brief in to the clerk yesterday, but you will receive it soon. You'll see that I and the coalition address in the brief not just the act but also the MP's code and the senator's code and also related laws like the Lobbying Act because they are all interrelated in terms of setting standards and enforcement systems to ensure democratic ethical good government.
The simple choice in terms of the committee making recommendations and the government making changes is either to make what the coalition sets out as 30 much needed changes to the act and the codes and another 14 changes to the related laws, or leave loopholes open and enforcement weak and ineffective, which essentially allows for unethical decision-making and unethical relations mainly with lobbyists by everyone involved in federal politics. Even the Ethics Commissioner, who has been mostly, from our perspective, an ineffective lapdog for the past five and a half years, has made 75 recommendations for changes to the act, most of them to strengthen the act, a few to weaken it.
I think there's a general consensus that the act is a bad joke. The act and the MP and senator ethics rules are so full of loopholes they should really be called the “almost impossible to be in a conflict of interest rules”. Even worse, the rules don't apply to some cabinet appointees, some ministerial staff and advisers, nor do they apply to the staff and the advisers of MPs and senators. So there are lots of people in federal politics who have no ethics rules that they have to follow at all.
The Ethics Commissioner's recommendations, 75 of them, didn't even address the two biggest loopholes in the act. Because of these huge loopholes, which also exist in the MP's code and senator's code, the act and the codes do not apply to 99% of the decisions and actions of the people covered by the act and codes. You currently have a law and codes that only apply to 1% of what people do who are covered by those codes. I'll talk about that a bit further.
The ethics rules that federal politicians have imposed on public servants through the values and ethics code of the Treasury Board and the conflict of interest policy do not contain most of the loopholes and flaws that are in the rules for politicians and their staff and cabinet appointees, so they're much stronger. Also, the Prime Minister has set an accountability guide for ministers that does not contain these loopholes. The MP's code and the senator's code have principles and purpose sections that are unenforceable, but if they were made enforceable most of the loopholes and flaws would be actually closed and we'd have meaningful ethical standards that would apply to 100% of what people do, not 1%.
An overall easy fix to the act and the codes would be just to take these rules from the public servants' codes, which politicians have imposed on them, and impose them on yourselves. Make these enforceable rules. In other words, the standards are already there, and they're in print; they're just not enforceable and not applicable to everybody.
There are also many enforcement problems. The cases of dozens of cabinet ministers and MPs being let off the hook with no penalty since 2007, along with many others who have escaped accountability for unethical behaviour in the past decades, show just how much the federal ethics rules and enforcement system are an ongoing bad joke. In the past 20 years, about 50 cabinet ministers have violated federal ethics rules, and only two have been penalized in any way: they were kicked out of cabinet. That's not a great enforcement record.
The Ethics Commissioner is a major part of the problem with ethics enforcement. Since 2007, she has rejected at least 80 complaints filed with her without issuing a public ruling. There could be more, because she didn't even disclose the total number of complaints she received in 2008-09 or in 2010-11. There is a total of 100 situations that she mentions in her annual reports, and she has issued 17 rulings, but that means there are 83 secret rulings at least. We don't even know how much she might have covered up, and there's good reason to suspect that she has covered up some cases, as she has repeatedly interpreted and applied the act and codes in very narrow, bizarre, and legally incorrect ways since 2007 and has let dozens of people off the hook.
A lot of the Ethics Commissioner's recommendations don't really have to be implemented. All that has to happen is for her to reverse her bizarre rulings and start enforcing the act and codes properly, legally, correctly, and in the spirit of the act and the codes. The real intent is to prohibit anyone from making a decision or undertaking any action if they're in any type of conflict of interest, real, potential, or apparent.
However, because of these loopholes and flaws, because the government has ignored recommendations over the past five years from the Ethics Commissioner and from others, including the Oliphant commission, and because the Ethics Commissioner shows no signs that she will reverse any of her bizarre rulings, there are 30 changes needed to the act and the codes, and another 14 changes, to actually clean up federal politics after the more than 145 years since Canada became a country.
There are no valid excuses for failing to close the loopholes and strengthen enforcement. It's really just a choice. If you as a committee don't recommend closing these loopholes and strengthening enforcement, you'll essentially be confirming that you think unethical decision-making and unethical relations by everyone in federal politics is just fine.
You face the same choice that past committees have faced. None of the committees has made the recommendations, and governments haven't made the changes, even though both the Chrétien and the Harper governments promised ethical decision-making and relations in federal politics. This is the 10th time that I've testified in the past 20 years. I'm hoping finally that it will have some effect and that we will finally get these changes that will make corruption effectively illegal.
We should be trying to match not just the standards that the Supreme Court of Canada has set out in several rulings but also those of the UN, the OECD, the World Bank, and the IMF. Every international institution says that if you don't have a democratic good government in which unethical decisions and relations are prohibited, you do not have democracy.
Therefore, I appeal to you to think about yourselves, to look in the mirror or look at your kids and your grandkids, and to think about whether you want to tell them in the future that you had an opportunity to push to close loopholes to end unethical decisions and relations in federal politics but that you did nothing.
Hopefully you will do something, as you did with the Lobbying Act. I think the committee made a good try. The minister rejected most of them. There were some loopholes the committee didn't address, but it was definitely a step forward, and hopefully the minister will respond more favourably in the future.
I will turn to the recommendations of the coalition.
First, as I mentioned already, ensure that everyone is covered by ethics rules. Some people are not, currently, but everyone should be, including the MPs' and senators' staff and advisers. We need to extend the codes to cover them.
Second, enact a general ethics integrity rule, essentially an anti-avoidance rule, such that if someone tried to exploit a technical loophole, they would not be able to but would still be found to be guilty for not maintaining high ethical standards and acting in a way that shows integrity. This rule already exists for public servants, so apply it to everybody else.
Third, enact an honesty in politics rule that everyone is required to comply with at all times. This rule already exists for public servants. It's also set out in the accountability guide for ministers and in the MPs' code in the principles section, so just apply it to everybody and make it enforceable. To paraphrase Gandhi, a lie for a lie will make the whole world dumb. As long as we allow lying in federal politics, we're going to continue turning off most voters. It's the number one hot button issue that Canadians want accountability for. Again, it's already in the rules; just make the rule enforceable.
Fourth, enact a rule prohibiting everyone from being in an apparent or foreseeable potential conflict of interest. Again, this rule already exists for all public servants, except the most senior people, who are covered by the act. This rule is in place for B.C. politicians in their act. It's also, again, set out in the principles in the accountability guide for ministers, in the MPs' code, and in the senators' code. Just make it enforceable. There has to be an apparent conflict of interest standard in force.
The huge loophole that exists in the act and in the MPs' and senators' codes is that you cannot be in a conflict of interest if you are dealing with a matter of general application. Ninety-nine per cent of what you do involves matters of general application. This loophole has to be eliminated, or the act and the codes will continue to apply to only 1% of what federal politicians, their staff, cabinet appointees, and advisers do. There's no reason to have that law if it's only going to apply to 1%.
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Lori Turnbull
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Lori Turnbull
2013-02-06 15:45
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Thank you. I'm going to be a little bit more general in my comments.
We're talking today about the Conflict of Interest Act applying to ministers, parliamentary secretaries, ministerial staff, ministerial advisers, deputy ministers, and other Governor in Council appointees. There is, as you know, also a code for members that would also apply to ministers simultaneously, but we're dealing just with the Conflict of Interest Act today.
In a general sense I would say that most of my work on this has been in a comparative context. I can say that in terms of conflict of interest legislation and codes that apply in countries that we normally compare ourselves to, the code that we have sort of looks like everybody else's in the sense that we have rules against similar things, and we have rules encouraging similar things. Our legislation has a lengthy section on what happens when you make the transition from public life to private life. There are different rules about cooling-off periods and what you're not allowed to do and whom you're not allowed to work for. It looks in a general sense like what the U.S. does, what Australia does, what the U.K. does, what we do in the provinces.
What you see in terms of differences between the legislation is there might be differences in punishments for failure to comply. There might be different reporting requirements. There might be different lengths of time in terms of cooling-off periods. But essentially the thrust of it is relatively similar. We deal with switching sides. We deal with the inappropriate use of information. We communicate that it's wrong to use the information you got in your public office once you come out to the private sector. All of those major things are there.
I wouldn't say that if we compare ours to other similar pieces of legislation, there's any glaring omission. There's not some huge area I can see that other jurisdictions deal with that we don't. In the other direction, I would say there's nothing really we're doing that we're the innovators for, that others aren't doing right. Our legislation seems to be relatively consistent with a group of countries that we normally compare ourselves to.
But there are differences in terms of the pieces of legislation in the area, if you look at them. It seems to me that regardless of how the code is worded and exactly how it's structured and that sort of thing, generally these things have similar objectives. Sometimes you see a legislature move to create this kind of code because they want to be consistent with other legislatures, because they want to make sure they're covering this off. Oftentimes these things come about when there's a specific trigger event or problem, that sort of immediate thing you want to show you're responding to.
But whatever it is, generally a code of ethics comes forward as a piece of communication. It's a tool to communicate. It's a tool to communicate standards to the people who are under the code. In this case it's something to communicate ethical standards and expectations to public office holders. It's also a tool to communicate to the public.
What people hope when we create these codes is that the people who are working under the code, the people who have to abide by the code, get a sense of what they're supposed to do. That's first and foremost. When we have this piece of legislation come into place, I'm guessing that the people who come under the piece of legislation want to be able to look to it and figure out what they're supposed to do, because what you don't want to do is find out you're on the wrong side of it. What you want it to do is create a common set of assumptions and understandings about what's acceptable and what's not. You want to have a clear idea of how you're supposed to be compliant with this thing, because most people are going to look at it and just not want to have any problems come from it. They want the instructions to be clear so they can do what they have to do, disclose what they have to disclose, and move on with their lives.
If you don't have a code like this, the information that we have from other jurisdictions seems to suggest that MPs and public office holders will have very different assumptions about what's ethical and what's not. If you can imagine not having a code at all and you went around to every MP and asked what they thought was an acceptable value of a gift to accept, or what they thought was acceptable in terms of disclosing assets, liabilities, that kind of thing, they would have very different ideas about those things. That means if you don't have a code, everybody is doing something different. If you have a code and everybody understands it and it's enforced reasonably well, then it means everybody is working under the same set of assumptions. Everyone is toeing the same line in terms of what we expect.
If everybody understands what's expected of them and everyone can sort of agree that it's reasonable, then probably over a period of time you will get a culture of acceptance of what the code is about. You're more likely to get compliance that way, because people get it. They think it's reasonable. People see that's what everybody else is doing, so they want to do the same thing so they're not the exception to the rule. It's much easier to get voluntary compliance if it comes across as reasonable and if everybody understands it. That doesn't necessarily mean the penalties have to be terrible. You should understand what's expected of you. That's the communication to public office holders, MPs, etc.
As for communication to the public, normally when these things are passed, whether as legislation or as part of the Standing Orders or whatever, legislators want members of the public to think that things are being run ethically. In the Canadian context, we don't want people at home to think that everything that happens on Parliament Hill is corrupt, and every time an MP meets with a lobbyist there's something miserable going on. We use these things to tell the voters that we're mindful of ethical standards all the time, and that there's a right way and a wrong way to do things, and that we're doing things the right way.
Finally, usually these codes have some sort of mechanism of compliance and penalty if you do something wrong, which is another way of communicating to the public that we take ethics seriously and that people who violate these rules will be punished.
Sometimes there can be a problem in the sense that the objectives of the code can come to be at odds with one another. In trying to encourage ethical behaviour, in trying to encourage compliance, in the process of trying to expose any kind of wrongdoing that's happening and punishing someone, all of which are totally defensible goals, sometimes the transparency can encourage the public to think there is actually a lot of wrongdoing when in fact there is not. If the media really have a lot to focus on and there are a number of investigations, and a number of times somebody is penalized $500 because they didn't disclose on time, then there's lots of fodder to start saying that all these things are going wrong and ethics is really a problem, when that might not be the case. It might not be that behaviour has really changed much at all; it's just that this is how the code works and it's exposing things.
In order to avoid that kind of a problem, I would say that we want to have the right balance between rules and principles. Generally the codes will fall on a kind of rules versus principles continuum in the sense that some codes—and you'll see these in the corporate world too—are very principle oriented. The language is very aspirational. The code talks about what we want and what you should do: MPs should uphold the highest ethical standards; it's all about what you should do and how you should look and what it means to be ethical. That's generally what the principles look like.
The rules tend to focus on what it means to be doing something wrong: the code prohibits this; you'll be penalized $500 if you do this. The language tends to be sort of negative, because that's the way rules and laws are. You focus on the things you're not supposed to do, and then you outline the penalties for doing them.
I think you want to get the right balance between those two things so that the principles are there, but then at the same time the rules are there to give some sort of clarity to the principles so that MPs and other people under the code know what they're supposed to do.
I read Commissioner Dawson's report as well. I can see that she has made a number of recommendations, many of which are very specific on the basis of her years of experience with the code and problems that she has run into. It seems to me that in some cases there are discrepancies between her mandate and the objectives of the code on one hand and her ability to get information and see what's really going on on the other hand. I think she is trying to close those gaps in some cases. She spends a lot of time talking about the idea of gifts and advantages and how MPs and ministers are supposed to deal with those.
In terms of closing loopholes, in terms of lowering the threshold for disclosure of a gift to $30 instead of $200, you can do a lot of that. Every time you review this code, every five years, you can probably come up with another huge list of things that you can penalize, or that you can address, or that you can create a mechanism to do something about.
You can do that over and over and over again, but it's not going to stop. Every time you review, there is going to be another area of behaviour that will come to your attention that you can make rules about. You can't do it exhaustively. If you focus too much on the rules and not so much on the principles, it doesn't encourage MPs and other people to use the kind of common sense approach which would probably eliminate a lot of these problems.
I would hope to see that whatever goes forward would be a balance between rules and principles, so you don't go too far off in one direction.
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View Blaine Calkins Profile
CPC (AB)
View Blaine Calkins Profile
2013-02-06 16:06
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This is a very politically charged environment. This is what politics is all about. From my perspective, as someone who's actually been elected and who understands what it's like to be here and knows what it's like to have false or misleading allegations levelled at you because someone hopes to create a perception, whether the allegation is true or not.... Sometimes that creates a sense in the court of public opinion because of the role that I play—and it could happen to any one of us at this table—that already we're in a court of public opinion, and once an allegation is brought forward, even if it's unsubstantiated, it does the damage that it was intended to do. We have some folks thinking that's an acceptable thing to do. Most criminal investigations would never release the investigation until.... There's a reason young offenders aren't named. There's a reason people aren't named until they're actually convicted, and so on. There are good reasons for that.
In the presumption in the court of public opinion, the damage could already be done simply through the fact that an allegation or an investigation is being conducted by a commissioner, for example. Those investigations could easily be triggered by any one of us asking the commissioner to investigate a fellow colleague from a different political party, or whatever the case might be. That could be an effective political tool. In most cases, these investigations yield nothing. For example, they might be just blind, shooting in the dark, hoping that something's going to stick.
In the event that someone is investigated and nothing is actually found, do you think that you or a parliamentarian or an elected official or a public office holder should have the right to know? Common law, I think, pretty much tells you that you have the right to face your accuser. In some of these cases, we don't know who has levelled the allegation or complaint.
Do you think there's anything that could or should be done? Is there something done in other countries that's different from what we're doing now? Should that kind of information be made available to the accused?
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Lori Turnbull
View Lori Turnbull Profile
Lori Turnbull
2013-02-06 16:08
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I think I know what you're getting at. I don't know of any countries that are better than we are at handling that.
For the most part, the focus is on the investigations that do find something. The result is public and everybody reads the same report. I understand what you're saying, and I understand the comparison with the legal community and the accused and that sort of thing. On the other hand, I can see how that would make this whole.... I mean, you're absolutely right: this is all politics. That's why I question the concept of enforceability and accountability as they apply here, because all of what we're talking about is within the realm of politics. If you're charging someone $200 or $500 because they weren't complying with the code, does that mean that the code is enforced? Well, no. It just means that there's a $200 cost associated with not disclosing. I don't think I would jump to enforceability just because there are monetary penalties in place.
I can see how, if these kinds of investigations and reports are used as political tools, and the results, whatever they are, are published, it could lead to more politicization and just a longer shelf life for this thing in the public eye.
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View Scott Andrews Profile
Ind. (NL)
View Scott Andrews Profile
2013-02-06 16:14
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Thank you very much.
Ms. Turnbull, my first question is for you.
You've looked at other legislation. You've looked at other countries. There's been a suggestion that we merge our conflict of interest and our code for members and the code for senators. Is that a good suggestion? Is it practical, and would it result in anything better?
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Lori Turnbull
View Lori Turnbull Profile
Lori Turnbull
2013-02-06 16:14
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I saw in Commissioner Dawson's report that she is suggesting a merger of the code for MPs and the code for ministers. I can see why, in the sense that, if you're a minister, you're both an MP and a minister at the same time. We've dealt on a number of occasions with this issue of wearing two hats at one time. If you're doing this in your capacity as a minister or in your capacity as an MP, which rules apply?
I think that if we're going to do it, the only reason for merging the two of them that I can see would be to try to reconcile the conflict that comes when one person wears two hats. If we were to do that, it would only be worth it if we had an actual conversation about what that means, not just to consolidate the rules, but to actually figure out the complexity of being both a minister and an MP at the same time, and how you can ethically act on behalf of your constituents as an MP when you also have the responsibilities and the power and authority that comes with being a minister. That's a really, really difficult question.
As an academic, it would be very interesting to see how Parliament would deal with that. I don't see that as an administrative change. That is a huge, substantive change that would require a really complex conversation.
In terms of merging with the Senate, again, you're looking at a very different office with a very different application of accountability. I don't think the Senate would enjoy that. When we initially started with these codes, the Senate was quite clear about wanting a code for senators with an ethics office for the senators. I don't see the huge advantage of doing it, but many other jurisdictions that are bicameral have a code for each house.
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View Scott Andrews Profile
Ind. (NL)
View Scott Andrews Profile
2013-02-06 16:16
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Mr. Conacher, let's have a little chat about the commissioner and what she reports on, and what she doesn't report on. She's made three recommendations, 6.2, 6.3, and 6.4, about being able to have a preliminary review of a request and making that public. The big one there, 6.3, is to publicly correct misinformation out there, and 6.4 actually suggests that members requesting an examination refrain from commenting publicly on that.
How do her three recommendations reconcile with your thoughts about what she comments on, and how, when, and what she doesn't comment on? I don't think she addresses anything that she doesn't comment on, if I'm not mistaken.
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Duff Conacher
View Duff Conacher Profile
Duff Conacher
2013-02-06 16:17
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No. Those are other recommendations the coalition disagrees with. It's increasing the secrecy, and there's already too much secrecy in the rulings.
To pick up on what Mr. Calkins was talking about, the coalition's not saying she should issue a ruling every time she comes across a situation, receives a complaint, or even gives advice. Not all those rulings would disclose who the person was, but would just be a summary that would let people know there had been a complaint about an action by someone and she had found nothing was wrong.
Right now if you read her annual report for two of the years, she says she received a number of complaints, as you mentioned. She doesn't say what number. We don't know whether she's doing her job or not. There's no way to judge that. She has issued 83 rulings, rejected 83 complaints, and she has not said anything about them. Maybe they were all valid, and she decided not to investigate them. For her accountability as the watchdog, you need to have that disclosure.
When the Senate ethics officer is asked for advice by a senator, issues a public summary that a senator has asked if he can do this in this situation, and this is what the ethics officer told him, it doesn't mention the senator. It's the same with complaints. Most of the provincial commissioners issue a summary of complaints they have received and whether they proceeded with the full investigation.
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View Charmaine Borg Profile
NDP (QC)
Thank you very much, Mr. Chair.
I would also like to thank our witnesses today for their presentations and also for their replies to our questions.
My first question is for Ms. Turnbull.
You said that we really need to find a balance between the rules to be followed and the principles. In your opinion, is that balance present in the current act? If that is not the case, what needs to be done to establish that balance?
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Lori Turnbull
View Lori Turnbull Profile
Lori Turnbull
2013-02-06 16:41
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To me, the legislation that's in place right now and the tone and substance of the recommendations put forward by the commissioner are very rules heavy as compared to principles. It seems to me that even if you look at the members' code, it strikes a more equitable balance between rules and principles than the Conflict of Interest Act does. It seems to me that the Conflict of Interest Act is very focused on enumerating specific areas of wrongdoing.
Most of the discussion from the commissioner is about how to close loopholes, how to address certain things that might not be enumerated now, and taking the threshold for disclosure of gifts from $200 to $30. I don't think a balance is there at all right now. That encourages ministers, and people who are under the legislation, not so much to think about big questions about what it means to be ethical, but to think about very specific cases where they might be outside the rules, and they want to avoid the bad press they'll get if someone finds out.
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View Alexandre Boulerice Profile
NDP (QC)
Five minutes? Super.
Ms. Turnbull, you sat on the panel of the Oliphant Commission. I would like you to tell us which of that commission's unimplemented recommendations you would like to see.
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Lori Turnbull
View Lori Turnbull Profile
Lori Turnbull
2013-02-06 16:53
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I'll focus on this issue of the apparent conflict of interest. That is something that other codes do, including some of the provincial codes. Many codes actually outline what a real conflict of interest is, what a potential conflict of interest is, and what an apparent conflict of interest is. The apparent standard is something that... I know what the commissioner is saying when she says it's not actually written in the code, but the code kind of does it anyway, in the sense that the code asks you to use a reasonable person's standard. If you receive a particular gift, how would that strike a reasonable person, or would that create the reasonable assumption that there's something not right going on?
That's fine, but the upshot of using the apparent is that it sort of invites the public office holder to put himself or herself in the position of the public looking at what's going on in a way that's much more explicit, and to think about the appearance of it and about how it is going to look if it lands in the newspaper. How is it going to look during an election campaign? Going back to this principal idea, public office holders might be encouraged to think more broadly about upholding ethical standards and staying away from things that are going to make everybody look bad.
In the 1960s, when Prime Minister Pearson was first dealing with this issue with his cabinet, that was what he was most concerned about. He was much more concerned with the appearance of wrongdoing than he was with what was actually going on. Politically, as you know better than I do, that's your problem, right? When everybody's talking about something as if it's a problem, there's a political imperative to try to manage that. I don't know why you wouldn't put the appearance standard in. I don't see the downside to doing it.
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View Chris Warkentin Profile
CPC (AB)
View Chris Warkentin Profile
2013-02-06 16:57
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I'd like to continue on that theme, Ms. Turnbull.
Those of us sitting at this end of the table may not necessarily agree with that last statement. You, as one of our constituents, might say that you don't make your decision based on what's written in the newspaper. Unfortunately, for many of us around this table, we stress a lot about our reputations and about the value we place on them and the integrity that we uphold.
When I look across the House, I see people of integrity in all parties. I don't look across and see corrupt folks. Unfortunately, I'm not sure that's how the newspapers present what happens in Parliament, oftentimes. I believe there needs to be the same protection for politicians that somebody in the medical community might expect or that somebody within certain professions might expect when false allegations come forward.
My concern is that as a politician, the only thing I have that I can take to the people.... I have to fight for my job every four years. I have to re-apply for it. If an activity has been alleged and it is entirely untrue, it may impact upon my ability to continue with my job.
In the case of the medical community, there are significant amounts of protection to ensure that professional credentials are protected until such time as there's a determination as to whether the allegation is true or not.
I wonder whether you have some thoughts with respect to how we might protect people of integrity against whom false allegations have been brought. How might the office undertake its responsibility to maintain integrity and ensure that this happens, but also, as Mr. Conacher has talked about, ensure transparency for the general population as well?
We're caught in a conflict. We want to be transparent with all this process, but we also have to think about protecting the reputations of people whose entire livelihood depends upon their reputations.
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Duff Conacher
View Duff Conacher Profile
Duff Conacher
2013-02-06 16:59
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You can't stop false accusations. There is libel law, so that's one protection you have. You can sue someone for libel.
If you have the Ethics Commissioner—
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Duff Conacher
View Duff Conacher Profile
Duff Conacher
2013-02-06 17:00
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Yes, but I was just going to say that one of our recommendations is an honesty in politics rule that applies in the House, in Parliament, before parliamentary committees, everywhere. It's one of the biggest things that is needed to clean up this spin-counterspin and these false allegations. Apply it everywhere. It's already in the MPs' code and the accountability guide. It's in the public servants' code. It says you have to act with honesty. That's what you're expected to do under the MPs' code, but it's not an enforceable rule.
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Ian Greene
View Ian Greene Profile
Ian Greene
2013-02-04 15:34
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Thank you very much. Merci beaucoup. It's a great pleasure to be here today. I really appreciate the invitation. I'm particularly pleased, because there are at least two members of this committee from my home province of Alberta. I recently discovered that my dad was dentist for the member for Red Deer, as well as for me.
Advancing ethics legislation is a bit like pulling teeth. It almost always comes as a result of a scandal. Sometimes it comes as a result of thoughtful deliberation. I'm really hoping that the recommendations that are discussed today can be proactive and can prevent future scandals as a result.
I spent four years working for the Alberta government—three years as a middle manager for social services, and one year as an assistant to a cabinet minister. During these four years, Peter Lougheed was the premier. He set an example by having unimpeachable ethical standards. He was in large measure part of my inspiration for the study of ethics in the public sector.
There are two points I want to make today. First of all, the conflict of interest regimes in Canada that work the best are those that require elected members to meet in person with the Ethics Commissioner or someone in the commissioner's office on an annual basis to discuss the member's disclosure statement. Secondly, I think it's important for this committee to re-examine the recommendations of part III of the Oliphant commission report that are within the jurisdiction of this committee, and to consider implementing the recommendations that haven't already been implemented.
First of all, compulsory meetings with the ethics commissioner—what became known as the Canadian model of the prevention of conflicts of interest involving elected members—began with the creation of the position of an independent conflict of interest commissioner, now referred to as the integrity commissioner, in Ontario in 1988. The Ontario legislation provides that all MPPs must submit a confidential disclosure statement to the commissioner within 60 days of an election, and that they have to meet in person with the commissioner to discuss that statement within another 60 days. Usually it's a lot quicker than that on both counts. The disclosure statements have to be updated annually, and there are required annual meetings, once again, with the commissioner. The commissioner also has the power to investigate complaints about alleged violations of the rules. On average, there has been an inquiry about once every two years.
From its inception, the Ontario approach was meant to be primarily educative, and thus preventive, and only secondarily investigative. The approach has been highly successful. The number of serious allegations of breach of conflict of interest rules dropped on an average annual basis by 90% after the new regime came into effect. Because it has worked so well, it has been copied in every jurisdiction in every province and territory across Canada, and now for the Senate and the House of Commons with some varied approaches. Now we are getting into the municipalities as well.
In every instance where this Canadian model has been instituted, there has been a drop in the number of allegations of conflict of interest. The least successful regime in terms of reducing the need for inquiries about allegations of breach of the rules is unfortunately the House of Commons and the cabinet. More allegations of breach of the rules are investigated by the Conflict of Interest and Ethics Commissioner per member than for any other legislative body in Canada. I think this is because there is no requirement to meet with the commissioner or someone in the commissioner's office. Between 2004 and 2010, the commissioner conducted annually, on average, four inquiries into credible allegations of breach of the rules. This is far too many. It leads to negative publicity about the person being investigated. This isn't the fault of the commissioner. It's because of the weakness in the preventive part of the Conflict of Interest Act.
In my experience, the great majority of the elected members in every party are honest. They enter into politics to serve the public good.
Most of us think we're ethical so we don't need to pay close attention to the rules, but conflict of interest is not always an easy concept to understand in some situations. That's why it is useful to obtain the personal advice of the Ethics Commissioner or one of her staff. As well, once personal contact has been established, it's more likely that an elected member will go to the commissioner or the commissioner's office for advice when unusual situations arise.
In Ontario, MPPs request advice from the Office of the Integrity Commissioner five to seven times a year on average. From what I can understand from Commissioner Dawson's report, it might be once or twice a year for the House of Commons. These informal inquiries are part of the preventive approach of the Canadian model, and they're more frequent once you have these compulsory meetings that not only help prevent conflict of interest in individual situations but create a rapport, trust, and a willingness to use the system.
Up until 2012, Commissioners Shapiro and Dawson between them had issued 19 reports resulting from investigations into allegations that MPs or cabinet ministers had violated either the code or the act. I've read all of the reports that resulted from these inquiries, and I've concluded that many, if not most, of these 19 inquiries would have been unnecessary or would have been much shorter had there been a previous personal meeting between the commissioner and a cabinet minister or a staff member and the MP.
My second recommendation is with regard to the recommendations of the Oliphant commission. Part III of the commission's report contained a number of recommendations for the Conflict of Interest and Ethics Commissioner, Mrs. Dawson, who has implemented all of them, for the Prime Minister's Office, and for this committee. I contacted the Prime Minister's Office to find out if they are contemplating implementing these recommendations. I got an acknowledgement, and they said they would get back to me, but I'm still waiting.
A number of recommendations affect this committee and its jurisdiction. I'm not sure if any of the recommendations have been implemented yet, but if not, I'd like you to consider them.
With regard to the educational role of the commissioner, the commissioner's office runs voluntary training sessions on the Conflict of Interest Act and Code. Only about half of the MPs attend, according to Mrs. Dawson's annual reports. Very few ministers attend. Oliphant recommended that attendance at these training sessions be compulsory for ministers and that party leaders should make them compulsory for their MPs.
It was recommended that after the filing of disclosure statements under the act and the code, there should be compulsory in-person meetings between the staff in the commissioner's office and the ministers and MPs, as is the case in most Canadian jurisdictions, including the Senate. To date, there haven't been any inquiries conducted by the Senate Ethics Officer. I think it's because the required annual in-person meetings have an effect in terms of preventing behaviour that could lead to allegations of conflict of interest.
The conflict of interest and lobbying rules have improved greatly in Canada since 1993-94. They are now amongst the most rigorous in the world, but there are still some loopholes that I think need addressing.
What Oliphant recommended was that the definition of employment in the Conflict of Interest Act should be clarified:
employment shall mean...any form of outside employment or business relationship involving the provision of services by the public office holder, reporting public office holder, or former reporting public office holder...including, but not limited to, services as an officer, director, employee, agent, lawyer, consultant, contractor, partner, or trustee.
In regard to the Conflict of Interest Act, Oliphant recommended that the definition of conflict of interest should be broadened to include an “apparent conflict of interest”. For example, this is the case in British Columbia and some other jurisdictions. It simply ensures that the legislation goes a little bit further to require members to observe the highest standards.
The Conflict of Interest Act should be amended so that post-employment provisions clearly refer to work done in Canada or anywhere else, according to Oliphant.
The Conflict of Interest Act should be amended to prohibit public office holders from awarding contracts or benefits to persons who may be in violation of the code, and if these public office holders are uncertain, they must check with the Ethics Commissioner.
The act should be amended to make it a non-criminal offence to fail to meet disclosure obligations.
As well, there should be an appropriate appeal mechanism regarding post-employment decisions of the commissioner that involve procedural fairness and transparency.
In conclusion, I think the Conflict of Interest Act has done a lot of good. It's always a work in progress. In Ontario, the legislature, every once in a while, acts proactively to tighten up the rules, instead of doing that because of scandals. I very much hope this committee will consider doing the same thing.
I look forward to your questions.
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Gregory J. Levine
View Gregory J. Levine Profile
Gregory J. Levine
2013-02-04 15:46
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Thank you.
The first thing I'd say is that I would endorse and echo what Professor Greene has just said to you. His recommendations make abundant sense to me.
Thank you for the chance to speak to you today.
The enactment of the Conflict of Interest Act was an important step in the evolution of an integrity and ethics system. While it's significant and welcome, there are ways in which it could be enhanced. Today I'd like to talk about a few of those ways in which it could be enhanced, including: the insertion of “apparent” conflict of interest; tightening post-employment restrictions; ethics education; and whether or not the enhanced use of administrative monetary penalties recently called for by the commissioner will transform the nature of the legislation, and whether or not that's appropriate.
Before looking at those issues, I'd like to make three general comments. One already has been made by Professor Greene. The first is that the Oliphant commission made several recommendations specifically aimed at the Conflict of Interest Act. To my knowledge, none of them have been implemented. I'll touch on two very briefly, but I think they all should be implemented.
The second general comment I have to make is about the approach of the act to the role of the commissioner. The commissioner is an adviser, a monitor, and an investigator. Unlike most of the provincial, territorial, and municipal commissioners, the commissioner has considerable power to order compliance, but not to penalize, except with administrative monetary penalties.
In her written submission as it appeared on her website, the commissioner now seeks enhanced penalty power, albeit in limited circumstances. As the act now stands, though, she's really more of a specialty ombudsman and is so as well under the members' code. In both contexts, this role is as a specialty ombudsman, similar to most other ethics commissioners in the country. As a general comment, I'd just say that if you're going to transform that role you ought not to do it lightly. I'm going to come back to that in a second.
The third broad observation is that the act deals with much more than conflict of interest. It's called the Conflict of Interest Act, but it deals with behaviours that are beyond conflict of interest: influence of office, misuse of insider information, inappropriate acceptance of gifts, and so on. Conflict of interest, classically defined, is about an opportunity, a potentiality, that is the opportunity or potential to make a decision in one's public role that will further one's private interests.
The act describes ways of avoiding that and so on, but other things, such as improperly influencing an action, for instance, are well beyond conflict of interest. It's misbehaviour. This goes to one of the things the commissioner has called for, and that's an enhancement of the purpose section of the act, which I would support.
I'd also suggest that it would be useful to do as Ontario's Members’ Integrity Act does, which is to have a preamble that clearly states the need for ethical behaviour in government and the aspirations to which the act applies. I don't know if it's necessary to change the name of the act, but I do think that guidance is useful.
I'd like to now comment on specific areas. The first, Professor Greene has already dealt with. The recommendation of the Oliphant commission that “apparent” conflict of interest be adopted and placed in the act I think is very important. I understand that there has been an argument which suggests that because perceptual language occurs in other parts of the Conflict of Interest Act, you need not define apparent conflict of interest. That's not correct, I respectfully submit.
We've had two commissions at the federal level, the Parker commission long ago, and the Oliphant commission, which have dealt with this and have called for the inclusion of this kind of standard. At the municipal level in Ontario now, both the Bellamy and Cunningham commissions have also called for it. I think it's just time to do it.
In terms of post-employment restrictions, again, Professor Greene has discussed this so I won't canvass it, but I think the definition of employment is one area that should be dealt with as Oliphant recommended.
The third area I wanted to talk about, which has been canvassed by Professor Greene much better than I could, is education and training. I would just say that I support the notion that there should be mandatory training. A requirement for public office holders to undertake ethics training and annual review of such training is not unreasonable.
I've dashed along here, but I'd just like to talk about administrative monetary penalties for a second. In general, there are limited consequences for breaching the rules in the act. It does contain administrative monetary penalties. It also contains order powers for the commission to enforce compliance, but it does not have any specified penalties for failure to meet the key substantive rules.
One senses that this is the case for two reasons. The commissioner is to report breaches to the Prime Minister, and it is presumed that the Prime Minister of the day would act in some way to deal with the person who has breached the rules. Also, the reports become public, and the light of day is its own cleanser, if you will.
In her written submission, the commissioner has called for an extended ability to levy administrative monetary penalties in limited circumstances, but also asks you to consider penalties for a more substantive breach. Part of her argument is about whether or not these matters become public.
I respectfully submit that this is a separate issue of how and when and what types of penalties should be in the act. For substantive breaches, I think there should be something beyond limited monetary penalties. It should include a range of possible sanctions. Remember, we're talking about public office holders here, so it could include things ranging from apologies to dismissal. I think it's appropriate that the Prime Minister do that and not the Ethics Commissioner.
Having said all of that, I'll say that if you do want to go to a model whereby the commissioner becomes the enforcer and the commissioner becomes like a tribunal, you will have to enhance the procedural protections in the act for people who will be subject to her penalties.
That's a whirlwind view. I'll stop it there.
Thanks.
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View Charlie Angus Profile
NDP (ON)
View Charlie Angus Profile
2013-02-04 15:54
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Thank you, gentlemen. This has been a very interesting opening session for us on the question of conflict of interest.
I think what we're all trying to get a sense of here is, how do we ensure that the rules are fair? Because in the day-to-day work of an MP, they could cross the line; it might not mean that they're setting out to do so, but they should be able to have a conversation. They should feel comfortable enough to be able to find out what the breach is and step back across that line. If Mr. Ford had taken advice of the commissioner the very first day that he stepped over the line, I think he wouldn't haven't been in the trouble that he was in. The commissioner was not out to bring him down but to say, “Listen, you might not fully understand the rules.”
I understand the education element of it. I guess the question is what the commissioner is asking for in terms of the greater breach. It's the issue of trying to influence someone in how to vote and make decisions. That has to have consequences.
Mr. Greene, do you believe the commissioner should have greater power for administrative monetary penalties? Who do you see taking that up?
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Ian Greene
View Ian Greene Profile
Ian Greene
2013-02-04 15:55
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I haven't thought about that aspect nearly as much as Greg Levine has. It really is important for the commissioner to have enforcement powers, but as Mr. Levine pointed out, there need to be appeal mechanisms and safeguards.
Also, I really agree with Greg Levine: with regard to cabinet, it really should be up to the Prime Minister to enforce.
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View Scott Andrews Profile
Ind. (NL)
View Scott Andrews Profile
2013-02-04 16:17
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That was one of my questions for you about administrative monetary penalties. I found your comments very interesting that the penalties that are there now are so small that one would say, okay, yes, it's the cost of doing business.
I agree with that, but let's talk about those substantive branches. I think you said that these should be put into some different categories of breaches of the act. What different categories would you look at, and what would be the corresponding penalties?
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Gregory J. Levine
View Gregory J. Levine Profile
Gregory J. Levine
2013-02-04 16:18
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Sorry, I was probably unclear. I think there are actually two categories. One is a set of misbehaviours: misuse of information, inappropriate acceptance of gifts, and so on. These are actual misbehaviours. If you do them, you've done something wrong. You're not merely in a conflict of interest.
If you step back conceptually, conflict of interest is different from those rules. Conflict of interest is about the potential to do something wrong. You have a private interest that could be furthered. Now what do you do? Do you step back or do you act on it? If you act on it, then you've crossed the behavioural line. So in the act there actually are two different sets of things.
In terms of the substantive penalties, I think there should be a range of penalties, ranging from apology to—for public office holders and cabinet ministers—dismissal. There needs to be, in a way, progressive discipline. There needs to be a range of things.
Now, there could be fines, but I think if you leave the fines the way they are, it's not going to amount to much.
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View John Carmichael Profile
CPC (ON)
View John Carmichael Profile
2013-02-04 16:20
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Thank you, Chair.
Thank you to our witnesses.
Maybe I'll start with you, Mr. Levine, and then I'll move to you, Mr. Greene. I'd like to ask you both the same questions.
I guess I'm wrestling with the definition at this point of apparent versus definitive conflict of interest, as currently defined, to the best of my understanding.
When the commissioner is asked to contemplate any type of investigation, launching an investigation into a conflict situation, there's the potential for public or external factors to create a presumption of guilt prior to her conclusions being determined. I wonder if there is a way, from your perspective, that you could advise us: do you see any way to mitigate attacks on reputation for purely partisan purposes?
Mr. Levine, could we start with you on that one? I want to give you first crack here to get your word in edgewise.
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Gregory J. Levine
View Gregory J. Levine Profile
Gregory J. Levine
2013-02-04 16:21
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Thank you. It is a problem if any of these codes or any of this conflict of interest legislation across the country are used for partisan purposes. I think the commissioner has to have the ability to refuse to investigate things. In most statutes across the country there are sections that allow refusal of an investigation for matters that are trivial or vexatious or frivolous, and I think that's a useful tool.
I am mindful that frivolity, for instance, is in the mind of the beholder. One person's frivolity can be another's great sin or problem, but nonetheless you have an objective person looking at it. So that is a way to deal with that.
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Ian Greene
View Ian Greene Profile
Ian Greene
2013-02-04 16:22
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In the first couple of years in the Ontario system, the first commissioner, former Chief Justice Evans, in one of his reports said he didn't like the number of petty complaints that were coming from members on both sides of the legislature. So he recommended that the parties have their own system whereby they go to the whip and the whip decides which allegations really are not trivial and ought to be raised publicly. That system seems to have worked, so that's something that might be tried here as well.
I think Commissioner Dawson has been very good at looking at complaints she gets to make sure they reach a certain threshold. There's a certain amount of information that has to be provided by the complainant before she will investigate, and a number of allegations she has refused to investigate because there was just not enough information. I think that's very helpful too, but I think working through the parties and the whips is a very good system to make sure that just the serious ones get through.
But to me, the most important part is preventive. Let's not talk about what we should do once the cat's out of the bag. Let's try to keep the cat in the bag in the first place and make sure that members understand the rules including if they are amended to include apparent conflict of interest. If every member had to meet with the commissioner or a deputy commissioner, they could ask what an apparent conflict of interest is and how, in their situation, they could avoid that.
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View Pierre-Luc Dusseault Profile
NDP (QC)
View Pierre-Luc Dusseault Profile
2012-03-01 11:10
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So the President of the Treasury Board would actually be the person who would introduce a bill on behalf of the government to amend the Lobbying Act. That is something he could do.
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Roger Scott-Douglas
View Roger Scott-Douglas Profile
Roger Scott-Douglas
2012-03-01 11:10
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That's absolutely correct, it would be the president. Obviously, in so doing, the president would be particularly interested, as the parliamentary secretary has indicated in the recommendations made by the standing committee. Indeed, it would also obviously be very interested in the recommendations made by the Commissioner of Lobbying in the course of the government formulating its position and whatever amendments it chose to bring forward to the House.
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John Chénier
View John Chénier Profile
John Chénier
2012-02-09 11:13
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Thank you for inviting me to appear before the committee on this review.
After writing about lobbying and lobby legislation in Canada and elsewhere for more than 20 years, I've come to the conclusion that reviewing lobby legislation is a bit like taking a long trip with a carload of children. Sooner or later—hopefully later—the inevitable cry of “Are we there yet?” drifts up from the back of the car.
This review of lobby legislation marks the sixth or seventh time—I forget which—that the question “Are we there yet?” has been posed since the legislation with respect to lobbying was passed into law in 1998.
Each review has come to the same conclusion: “No, we are not there yet.”
Part of the reason for that answer is that it has never been clear where the legislation was supposed to take us. We didn't know where we were supposed to go, or what the purpose of lobby legislation was.
Perhaps the ultimate destination was clear to some, but even then, the way to get there remained a mystery, perhaps because the road to get there hadn't been built yet. Maybe it still doesn't exist. It's like the New England saying “You can't get to there from here”.
What have been the course corrections so far? We're requiring more precise, accurate, timely, and current information from lobbyists in each iteration, we've sharpened the definition of lobbying, and we've lengthened the time to charge those in violation of the act from six months to two years to ten years.
The purpose of these revisions has been to ensure compliance by changing the definition and lengthening the time to prosecute violations, and to increase transparency. As a result, we do know much more than we knew back in 1998 about who is attempting to influence government.
Yet with all this time and effort, the registry still cannot give a definitive answer as to who is lobbying for whom and for what ends. Perhaps it may never succeed in this regard. Often attempts to strengthen one aspect of lobby legislation entice lobbyists to make use of hitherto unused or unknown avoidance tactics.
For example, in the U.S., the last major overhaul of lobby legislation by the previous Congress, spurred on by the Abramoff scandal, led to the disappearance of 3,000 people from the registry of lobbyists, but not, I might add, from the D.C. community of lobbyists. Part of that disappearance from the roster was also due to the Obama administration's effort to ban lobbyists from sitting on advisory boards and panels.
In Canada it would appear that strengthening post-employment guidelines may have led to more use of the 20% rule to avoid registering as lobbyists, and avoiding the post-employment ban in the process.
Let me say for the record that I concur with the suggestions or recommendations put forward to this committee by the Commissioner of Lobbying, Ms. Shepherd, on December 13.
I think the 20% rule should be suspended, but I also think it would be necessary, as Ms. Shepherd suggested, to craft some regulations to prevent a deluge of new registrations. You would not want the removal of the 20% rule to force all those many constituents and others who troop up to your offices day in and day out in the increasing number of lobby days to register as lobbyists. On the other hand, it is important to ensure that while the registry should be free of these foot soldiers, it captures the activities of all those involved in organizing these and other grassroots events.
With respect to the enforcement of rule 8 of the code of conflict, which is perhaps the most controversial measure, I think it critically important that this review provide the commissioner a clear and firm mandate in carrying out this difficult task.
I've been a student of public policy making since the 1970s, and I have worked on and off in various government policy units until 1986. When we began publishing The Lobby Monitor in 1989, I was aware that having a lobbyist who was known to be in regular contact with the prime minister or the minister working on behalf of a client involved in a file would have a major impact on how those inside government would handle your file.
There is no doubt in my mind that the lobbyists' known connections to political parties matter. They matter to the client, and they are often used as a major marketing tool. They matter to the public officials involved in the file. If they are not astute enough to recognize that, they shouldn't be where they are. They certainly matter to the public in terms of their perspective of how government works.
We will never be able to sever the connection between the world of government relations and politicians, but it is essential that we moderate it.
In my view, the unhealthy situation that existed between 1986 and 2009 was untenable. While it is true that balance may be reached in the internal decision-making process by equalizing opposing lobby forces, that does nothing for the public perception that hiring friends of the party is the way business is done.
In other words, you would often have the situation whereby people would say, “They have their lobbyists and we have ours, and it equalizes out”. Well, that might equalize out on the inside, but from the outside there's still the perception that everyone is hiring friends of the government or friends of politicians to get things done, and that is not a healthy perception.
Lobbying legislation is only one of four pieces of the whole that governs the conduct of government. The others are the conflict of interest code that guides the conduct of public servants, the Office of Conflict of Interest and Ethics Commissioner in the Commons, and the Office of the Senate Ethics Officer. All of these are essential to the health of our political institutions. Proper enforcement of rule 8 is, in my view, necessary for the Office of the Commissioner of Lobbying to fulfill its part in the overall ethics mandate.
Thank you. I'd be happy to answer any questions later.
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Duff Conacher
View Duff Conacher Profile
Duff Conacher
2012-02-09 11:19
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Thank you very much to the committee for this opportunity to appear before you as the chairperson of the Government Ethics Coalition, which is made up of more than 30 citizens groups from across the country, from various sectors of society, with a total membership of three million Canadians.
You have the submission of the coalition—10 pages with 10 key recommendations. It all adds up to, quite simply, a simple choice: will you strongly recommend changes to the Lobbying Act to end secret, unethical lobbying and to make enforcement effective, or will you ignore the loopholes and leave them open and not make recommendations to close them or to make enforcement effective?
The act is so full of loopholes it should not be called the Lobbying Act; it should be called the “some lobbying by some lobbyists act”, because that's all it requires: disclosure of some lobbying by some lobbyists. Because secret lobbying is legal, unethical lobbying is legal. Secret, unethical lobbying is legal even for cabinet ministers the day after they leave office because of loopholes in the act. They have to be a bit careful about whom they lobby mainly because of rules in the Conflict of Interest Act, not the Lobbying Act. And they have to be a bit careful for whom they lobby and on what they lobby, but they can lobby cabinet ministers, senior government officials, and everyone in the government and the opposition parties and the public service. Cabinet appointees and every government institution can lobby in secret the day after they leave office. That's how bad the situation is.
There are no valid excuses for failing to close the loopholes and failing to strengthen enforcement. You simply have a choice. Will you endorse, as every committee and every party and every government has endorsed right back to Confederation, secret, unethical lobbying and ineffective enforcement, or will you strongly recommend that the loopholes finally be closed and the enforcement be strengthened so that secret, unethical lobbying is illegal? It's not that it will be stopped. People will always try to violate every law that exists. That's not a reason to leave the loopholes open. Some people say you can't legislate morality. They're twisting that saying. That saying means that no matter what you do, some people will be immoral. It doesn't mean you leave loopholes open because some people will be immoral. So you have this choice.
This is the tenth committee hearing for the House or Senate I've attended on this subject since 1993. No committee has made these recommendations; no government has made the changes. No opposition party has ever introduced a private member's bill, but every party in opposition has complained about secret, unethical lobbying.
Will you either continue playing the game that's been going on since 1988 or finally clean up your acts by making the recommendations that will clean up the Lobbying Act and related laws to finally clean up the federal government?
Why should you do this? The Supreme Court of Canada, the Federal Court of Appeal, the UN, the OECD, the World Bank, the IMF, and every other international institution says you don't have a democratic good government if you allow secret, unethical lobbying. If that's not reason enough, how about how you look at yourself in the mirror if you're not going to make these recommendations? What will you say to your children and your grandchildren? That you had a chance to recommend ending one of the most fundamental problems that undermines democratic good government but didn't take that opportunity? Instead, as again every committee has done since 1988, you just kept your eyes closed to secret, unethical lobbying and pretended that everything was fine.
What major changes are needed? The coalition is making 10 recommendations. I'm going to focus on a few of them because the devil truly is in the details.
As you've heard the other two speakers and every other witness talk about, there are loopholes that allow for unregistered secret lobbying. Those loopholes must be closed. But some of them haven't been mentioned before the committee. It's not just the 20% rule that is exploited to lobby in secret. It's also that you can lobby about the enforcement or administration of a law, regulation, code, guideline, policy, subsidy, or tax, and not register. That's a gigantic loophole. Tons of lobbying goes on about enforcement and administration of laws, but no registrations are required for it.
The paid and unpaid lobbying is also a gigantic loophole. All you have to do is arrange to have someone pay you to do other services for them and you do the lobbying for free.
A lot of people have emphasized over the years that they're worried most about these paid lobbyists, that they're the worst. Actually, the unpaid lobbyists are as bad. They are the ones you should worry about more in some ways. They are the cabinet ministers who leave and have their nice gold-plated pensions and make a few calls for friends for free. They have enormous influence on the inside and they don't have to register because they're unpaid.
You either solve this problem by closing these loopholes, including requiring unpaid lobbying to be registered, or, as the Conservatives promised in 2006, you flip the onus and require everyone in government, in every institution—in opposition parties, Parliament, staff, and everyone—to disclose anyone who communicates with them about their decisions.
The only exception to that—and it's really the way the act should have been designed in the first place because then you wouldn't have these loopholes—would be the constituent contacting you about a personal concern every so often. If they were organized and had a little community group and they were pushing, it would be disclosed. Then you would capture it all. Secret and unethical lobbying would be ended because secret lobbying, and therefore unethical lobbying, would be illegal.
Turning to this five-year cooling-off period, it was extended in a kind of blunt move that's a bit unfair to all MPs. It should be changed into a sliding scale.
If you're a backbench MP who is not on a committee, then you would sit out for a certain length of time. It should run from one year to five years. It should cover staff of all politicians as well. They're not covered by any ethics rules at all right now.
Depending on whether you were on a committee or chaired a committee or you were parliamentary secretary, you would go up this scale from one to five years.
That's the fair change to make. The fact that a backbench MP who doesn't even sit on a committee has to sit out for five years after they leave—the same length of time as a cabinet minister—doesn't make sense.
That change should be made, but you should not lower the five-year limit. Five years is appropriate for cabinet ministers and senior government officials. It's the length of time that's needed to have a changeover in government so their influence and access is not as potent as it is when they first leave.
In the enforcement area, you should also make changes to the act that require the commissioner to conduct regular random audits and inspections. The commissioner is sitting back too much and waiting for complaints and not proactively out there checking who is communicating with which institutions. It's basic law enforcement to be doing random, regular inspections. Police officers do it; everyone who is enforcing a law does it.
You have to require the commissioner to do it. Give her the clear power and mandate to do this. As well, in the enforcement area, you should require the commissioner and the Director of Public Prosecutions to be ruling publicly, within a reasonable time period, on every situation that raises issues of violations.
If you look back to 2004, there are dozens of complaints that still haven't been ruled on. We don't even know who the complaints are about. From all evidence, often the commissioner is rejecting some complaints without ever publicly stating they have been rejected. The public has the right to know about all the situations that have arisen and what the ruling was by the commissioner.
As well, in enforcement, a key area is giving the commissioner the power and the mandate to impose penalties. On Tuesday you heard all four commissioners from the provinces say this is necessary, and some are saying it's going to cause some sort of conflict. GRIC, the Government Relations Institute of Canada, was complaining that this might cause a conflict; the RCMP and crown prosecutors might be doing something different from what the commissioner does.
I think they misunderstand it. The administrative penalties are not there for violations of the act that amount to a crime but for administrative violations of the act. There would not be a conflict in terms of investigations and having that power to levy fines.
If this were allowed, the commissioner would be able to proceed and make a ruling rather than waiting for the RCMP and crown prosecutors to bounce it around for three, four, five years before she finally can proceed under the lobbyists' code.
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View Colin Mayes Profile
CPC (BC)
View Colin Mayes Profile
2012-02-09 11:59
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Is there ethical lobbying and unethical lobbying? For instance, healthy lobbying.... When you're sitting as mayor and getting reports from staff on issues and making decisions from those reports, that's kind of lobbying you as an elected official.
Then you have people who today can access you through the Internet and send you reports on their position, so you're being lobbied again. But I value that. I can look at these issues, balance them out, and understand both sides of the issue on any given subject.
Is it not more important to discern the unethical lobbying, where they're saying, okay, if you do this for me, or if you implement this, you're going to see support politically or financially, or some sort of benefit...? How do you discern that, especially with the technology today and the access they have to the public office holder?
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Stéphanie Yates
View Stéphanie Yates Profile
Stéphanie Yates
2012-02-09 12:00
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Before I answer the question, I'd like to go back to the first one, which was whether there are inspiring examples elsewhere in the world.
I agree that no legislation is necessarily perfect. But to come back to the American example, I think the definition of lobbying adopted by the American legislator seems quite relevant. It includes preparation, strategic advice and calls that aren't strictly lobbying within the meaning of our act, but that fall under this idea of influence.
In fact, people are very cynical when they see a former minister leaving his duties, and becoming a strategic advisor, and not a lobbyist, with a consulting firm the next day. While I'm not saying that the American model is the model to use, when it comes to the definition of lobbying, I think there's something very interesting in that model.
To come back to the question about ethical lobbying compared with non-ethical lobbying, I think there's a significant risk of deviation. I think the Canadian legislation needs to build on transparency. We will get to that stage when we are truly transparent, especially when it comes to ethical and non-ethical activities. In that respect, saying that certain activities from charity or community organizations don't need to be registered because they're obviously ethical may result in some deviation. I think transparency must prevail.
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View Charlie Angus Profile
NDP (ON)
View Charlie Angus Profile
2012-02-02 11:22
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You're on the board of directors of the Albany Club, and the Albany Club was recently in the newspaper because of the arranged dinner for an event with the President of the Treasury Board. I'm looking at the.... It talks about it being a politically Conservative club for
“like-minded” people. We nurture our exclusivity and with that our privacy. The Albany Club is an important instrument of conservatism in Canada.
Now, obviously I haven't been invited to the club. I think one of the questions about lobbying is that it's who you know, right? It's the doors that open.
You have a club where it's exclusive. It's where you bring people together to make things happen. How do you ensure there's a sense of transparency as you speak about an accountability that if you set up a club where if you want to go and you want to meet with the right kind of people...? If I were a lobbyist, heck, man, I would have a membership there, because I could get a lot of business done.
How do we ensure there's a transparency element that you talk about?
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Karen Shepherd
View Karen Shepherd Profile
Karen Shepherd
2011-12-13 8:45
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Good morning, Madam Chair and members of the committee.
I am pleased to be here today to discuss the legislative review of the Lobbying Act. I am accompanied by Mr. René Leblanc, Deputy Commissioner, and Mr. Bruce Bergen, Senior Counsel.
Last March I submitted to the committee my report on the experience of administering the act over the last five years. Today I am submitting a revised report. It is essentially the same report, containing my recommendations for improving the Lobbying Act. This report also contains information about three administrative monetary systems currently in existence.
In my view, several aspects of the Lobbying Act are working to increase transparency in government. 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. However, based on my experience, key amendments to the act would capture a greater share of lobbying activities, thus increasing transparency and enabling me to enforce it more decisively.
The Registry of Lobbyists provides a wealth of information on who is engaged in the lobbying activities for payment but does not capture the lobbying activities of organizations and corporations who do not meet the “significant part of duties” threshold. That threshold is difficult to calculate and even more difficult to enforce. That is why I am recommending that the “significant part of duties” provisions be removed from the act. In doing so, I would also recommend that Parliament give consideration as to whom the legislation should capture and whether a limited set of exemptions might be necessary. I would be pleased to explore this issue with Parliament during its deliberations.
The senior officer in a corporation or organization is currently responsible for reporting on its lobbying activities. I believe this accountability is important and should not be changed. That said, I believe it would be more transparent if the names of those actually engaging in lobbying activities at meetings with designated public office holders were also listed in the monthly communication report. Currently, only the senior officer is listed, even though he or she may not have attended the meeting.
I also recommend that all oral communications, regardless of who initiated them and whether or not they were planned, should be reported. Currently, only oral and arranged communications are reported monthly. Deleting “and arranged” would increase transparency by disclosing any chance meetings or other communications between lobbyists and designated public office holders where a registerable lobbying activity takes place.
The Lobbying Act provides me with a mandate to develop and implement educational programs to foster public awareness of the act. Communicating the rationale and requirements of the act and the Lobbyists' Code of Conduct leads to greater compliance. I recommend that this education mandate remain explicit in the legislation.
In terms of my ability to enforce the Lobbying Act, the only measures available to me are referrals to the police for a breach of the act and reports to Parliament for a breach of the code. Previously before this committee, I suggested that these enforcement measures may not be appropriate for the different levels of infractions that I encounter.
When I refer a file to the RCMP, the act requires that I suspend looking into the matter, pending the outcome of their investigation. As I can only continue with my own investigation once a decision has been taken by the RCMP, this affects my ability to render decisions and to table reports to Parliament in a timely manner.
In a previous appearance, I indicated that lobbyists have voluntarily come forward to disclose that they were late in registering or submitting monthly communication reports. I see this as an encouraging sign that lobbyists want to comply with the act. I do not believe the public interest would be well served if I were to refer such files to the RCMP for criminal investigation.
For these and other lesser transgressions, I have decided to educate and monitor the lobbyists. I do not see this as letting them off the hook. Employing such alternative measures encourages others to come forward. In addition, as I indicated, individuals subject to education and/or correction continue to be monitored to ensure they remain in compliance.
For that reason, I am recommending an administrative monetary penalty mechanism be adopted. This would provide a continuum between my current practice of relying on educational measures and the more severe and lengthy processes of referrals to a peace officer or reports to Parliament.
Despite the available penalties under the current act, no one has ever been charged, or convicted, of an offence under the Lobbying Act. I am of the view that, unless there are amendments to include a range of enforcement measures, probabilities of consequences other than reports to Parliament remain low.
As I have mentioned before, the Lobbying Act prescribes that investigations must be conducted in private. This should not be taken as an indication that I am not enforcing the act; in fact, the opposite is true. I am enforcing the act to the full extent provided by the current provisions of the legislation.
Since I became commissioner I have sent six files to the RCMP and I have tabled eight reports in Parliament for breaches of the code, including the one I tabled yesterday.
I continue to believe that conducting investigations in private assures their integrity and protects the reputation of those who may have been wrongly accused. This is not insignificant; however, I have started confirming to parliamentary committees that certain administrative reviews and investigations have been opened when the matter was clearly in the public domain.
As a result, I think it is important that the act be amended to include provisions that would offer the commissioner or any person acting on my behalf some degree of immunity against criminal or civil proceedings, libel, or slander.
I would now like to take this opportunity to address some of the criticisms of the administration of the act and the Lobbyists' Code of Conduct.
At the federal level, a lobbyists' code of conduct has been in place since 1997. Its purpose is to ensure that lobbying activities are conducted at the highest ethical level. Rule 8 of the code has received much attention. Rule 8 prohibits lobbyists from placing public office holders in a conflict of interest.
Political activities are only one way that lobbyists risk placing a public office holder in a real or potential conflict of interest. Because political activities have been the focus, I would like to address this here. Both my guidance and two of my reports to Parliament clearly indicate that helping a person to get elected advances his or her private interest. Political activities by lobbyists in support of persons who seek public office and become public office holders may place those public office holders in a position of conflict of interest when lobby activities also take place. This can result in a breach of rule 8 of the code.
My interpretation reflects the judgment of the Federal Court of Appeal, which was quite conclusive in overturning the old interpretation of rule 8 and in offering clear direction regarding how it should be interpreted.
Contrary to some reports in the media, I do not prohibit lobbyists from engaging in political activities. I believe that lobbyists are professionals and that I have provided them with sufficient information to allow them to make decisions. This enables them to exercise caution when engaging in political activities by taking into account their lobbying activities. In fact, some lobbyists have indicated that the guidance and clarifications were sufficient and they are arranging their affairs accordingly.
The issue of my decision not to provide advance rulings has also been raised in terms of which political activities lobbyists may perform without risk. First, I would like to reiterate that I do not regulate political activities. From my perspective, the issue only arises when political activities intersect with lobbying activities.
Second, I am administering and enforcing the act that Parliament enacted. Under the Lobbying Act, my decisions are judicially reviewable. It is therefore imperative that all my decisions be fair and based on all relevant facts. I must be prudent in relation to advising lobbyists regarding potential situations based on information that could easily change after the advice is given. It would not only put at risk the person to whom I would provide this ruling, but it would also put at risk my ability to look into a matter in the future should there be allegations of improper lobbying activity against this person. My neutrality and my ability to be fair would be compromised.
In conclusion, I want to assure the members of the committee that I've been administering the Lobbying Act as Parliament has enacted it. As the administrator of the act I look forward to working with the committee on the legislative review to find ways to further enhance transparency and better ensure compliance.
Madam Chair, this concludes my remarks.
I want to thank you for your attention and I will now be pleased to answer any questions you or the committee members may have.
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View Scott Andrews Profile
Ind. (NL)
View Scott Andrews Profile
2011-12-13 9:14
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That's where I was going to go, because the onus in all lobbying is on the lobbyists themselves. I know we've asked questions about whether there should be a reverse onus on the public office holders. I know when the Conservatives promised open accountability, they promised that ministers would report who they were meeting with, and that hasn't happened.
Would it be helpful to have ministers and certain levels of office holders do some reporting to you as well, so that you could see who's meeting with who, and if something is missing you would see that, and you could cross-reference? If both parties knew they were being reported, they would be more open to telling and be more upfront about their meetings, because if one party reported it and one party didn't, then that would raise a red flag. So it's opening up a whole new area of onus. Should we be moving the onus to both parties?
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Karen Shepherd
View Karen Shepherd Profile
Karen Shepherd
2011-12-13 9:15
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Well, in terms of the onus, you're right, it's on the lobbyist. There's no responsibility on the public office holder. Having them report to me is an interesting question in terms of mandate. It changes the mandate of the act in terms of placing it on the public office holder. Having, as you say, both coming in would be problematic, first in tying it to a registration. Right now, the monthly communication reports that the lobbyist files are tied to a registration. Having the monthly communication report come in from the public office holder, who may have several meetings, would be quite the administrative challenge in trying to match that with the registration.
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View Earl Dreeshen Profile
CPC (AB)
View Earl Dreeshen Profile
2011-12-13 9:50
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To take this back more to the local level, if you have a group coming to meet with you in your constituency office—they are part of some major organization and they want to talk to you about an issue—and they've brought along three or four local representatives and so on...you talked again about the chill of having to have your name on a list. I wonder if you could give a little advice as to what one should be thinking about under those circumstances.
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Karen Shepherd
View Karen Shepherd Profile
Karen Shepherd
2011-12-13 9:51
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In terms of the group coming to see you, if they're all lobbying and communicating in the meeting, then I think their names should be on a list.
Are you asking if it's government initiated, if the meeting is transparent? Some of the things that come up—and I have an interpretation bulletin on government-initiated consultations—if they are transparent.... For example, appearances before the committee are quite transparent. Minutes of the meeting are being taken. Anyone can figure out who attended the meeting and what was said.
The issue with private meetings is this: are they now behind closed doors and should there be more information? Those individuals who are coming to see you would participate and communicate in the meeting and would then show up on the list.
This is the whole thing of getting out there. Lobbying is legitimate. It's just that it needs to be done in a transparent manner.
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