:
Mr. Chair, members of the committee, thank you for this opportunity to address you today.
[English]
I apologize for not being able to attend the previously scheduled appointment with the committee. Unfortunately, I was sick and would prefer not to go into further details of that on the record in Hansard.
[Translation]
Today I will testify in English. I will try to reply to your questions in English as well as in French.
[English]
There are three issues I would like to address in my testimony today: first, the need to amend the Conflict of Interest Act to codify certain provisions of the guidelines included in the document “Accountable Government: A Guide for Ministers and Ministers of State”; second, the need for changes to sanctions available to the Conflict of Interest Commissioner; and third, the need to set clear timelines for compliance with specific provisions of the act, and to make public notification when office holders have failed to meet those deadlines.
Before I address those issues, I would simply like to make members of the committee aware of the background I bring to my testimony on the review of the Conflict of Interest Act today. As the chair of the committee informed you, I am a law professor in the common law section of the University of Ottawa's Faculty of Law. I'm a member of the public law group at the Faculty of Law, and my two chief areas of research are one, public law and government; and two, ethics of the legal profession including judicial ethics. Today's subject obviously lies at the intersection of these two research interests. I've written about ethics in government, particularly concerning lawyers in government.
Prior to entering academia, I was a political staffer for three years in Ontario, between 2003 and 2006, first as senior policy adviser and then as chief of staff to the Attorney General of Ontario. As a political staffer, I was subject to certain conflict of interest provisions and the jurisdiction of the then existing conflict of interest commissioner. As chief of staff to the Attorney General, I had frequent interactions with the Office of the Integrity Commissioner of Ontario on behalf of the Attorney General, who, as a member of provincial Parliament and as a minister, was subject to provisions of the Ontario Members' Integrity Act. I believe you heard from the current Integrity Commissioner, Lynn Morrison, who I had frequent contact with during those years.
Finally, in 2009 I had the opportunity to serve as a research consultant for the Institute of Public Administration of Canada on a CIDA-funded project known as the deployment for democratic development. I worked under the supervision of former deputy minister Mary Gusella on a law reform project in Tanzania, related to conflict of interest in government. Our team analyzed conflict of interest provisions across Canada, the United States, countries in Asia and Africa, and within the UN and the OECD.
With that background, let me turn to my submissions.
First, I recommend that the act be amended to codify certain provisions of the guidelines included in the document “Accountable Government: A Guide for Ministers and Ministers of State”. Recent events have demonstrated the need to amend the act to include an express prohibition on public office holders contacting courts or quasi-judicial tribunals, seeking to promote the interests of private individuals.
Section 9 of the act prohibits public office holders from using their positions as public office holders to seek to influence a decision of another person, etc. As you know, the commissioner has interpreted this provision—rightly, in my opinion—as prohibiting public office holders from writing letters on behalf of individuals in support of applications before quasi-judicial tribunals. In one such compliance order, the commissioner cited provisions from the document “Accountable Government”. That document contains some of the most important legal, constitutional, and ethical prohibitions on ministers and ministers of state. However, it does not have the force of law. As it says, it is only a guide. I recommend that the act be amended to clearly set out, first, that all public office holders be absolutely prohibited from intervening or attempting to intervene on behalf of any person in any court proceeding, and second, that all public office holders be prohibited from intervening or attempting to intervene on behalf of any person in any quasi-judicial proceeding.
On the quasi-judicial point, I think the guidelines are extremely comprehensive, and I would simply recommend them to members of the committee for their consideration.
On interference or attempted interference with court proceedings, I feel compelled to say a few words because of some of the comments that were made in response to the recent resignation of a minister of the crown for providing a character reference to the tax court on behalf of a constituent. Under our system of government we do not have a formal separation of powers, as they do in the United States. What we do have is certainly a strict separation between the judicial branch and the other branches of government. With the exception of directing a reference to the courts, the executive or the legislative branch simply cannot direct the courts in what to do. History teaches us that when executive control over the courts happens, that is often the beginning of tyranny, as recent events in Pakistan, Zimbabwe, Egypt, and elsewhere have demonstrated.
In Canada, we are proud to have a strongly independent judiciary respected by Canadians and people across the world. It's incumbent upon us to ensure there are no encroachments on public confidence in our independent judiciary. Public office holders exercise power in trust for the public. They simply have no business attempting to intervene with the operations of the judicial branch on behalf of anyone. I don't think, as some commentators in the media have said, that this was simply an issue of no harm, no foul. It's about protecting the integrity of both the judicial branch and the executive branch, and I think it is far too important to be left to guidelines issued by the executive. This imperative of non-interference in judicial matters should be enshrined in the Conflict of Interest Act.
Second, I recommend that the act be amended to repeal the provisions related to administrative monetary penalties. I believe that the current level of $500 is simply not commensurate with the importance of the issues contained in the act. This low level risks equating conflict of interest and ethics issues to parking tickets, or perhaps to speeding tickets.
I don't favour increasing the administrative monetary penalties to a level that I think would be commensurate with the importance of these issues, which in my mind would be at least $10,000, because I fear that that would lead to greater judicialization of the act. Although I'm a lawyer and a law professor, it is not my brief today to seek further employment opportunities for our students. Instead, I believe the strongest sanctions the commissioner has at her disposal are her moral authority and the power of condemnation. I would like to see the act amended to increase the powers of the commissioner in two specific ways: first, to issue a formal reprimand against a public office holder for violation of any provision in the act; and second, to send a copy of any decision regarding a public office holder to the minister responsible, or, in the case of a minister or a parliamentary secretary, to send a copy of any decision to the Prime Minister, and require a response from the minister or the Prime Minister as to how they propose to deal with the violation within a set period of time.
Finally, I recommend that the act be amended to require the commissioner to publish the names of those who are not in compliance with various reporting provisions of the act. In her 2011-12 annual report, the commissioner reported that in the prior fiscal year, 53 out of 299 new reporting public office holders did not complete their confidential reports within the 60-day deadline. That was an increase from the previous year. The commissioner does have the power to issue administrative monetary penalties for such non-compliance, but I think is understandably hesitant to do so. I recommend that the act be amended to require every appointing body or person to notify the commissioner of an appointment of a public office holder within seven days of their appointment. I further recommend that the act be amended to require the commissioner to publish the names of those public office holders who fail to meet specific deadlines set out in the act. I would expect that the media and the opposition would be interested in such a list, and that such a list would be considered a list of shame. I would hope so.
I believe that such a process would provide a strong incentive to all public office holders to meet the deadlines set out in the act. I can tell you that's certainly my own experience as a lawyer subject to the jurisdiction of the Law Society of Upper Canada, which publishes a notice in Ontario Reports of lawyers who have delayed in paying their fees and have thus been administratively suspended. That document is distributed free each week to all of Ontario's 44,000 lawyers.
As the chief of staff to the Attorney General of Ontario, the province's highest lawyer, I had a recurring nightmare that we would forget to pay the minister's dues and we would see his name on that list. I knew that if that day were to come, it would be my last day on the job.
I suggest to you that a similar process under the Conflict of Interest Act would provide a stronger incentive for timely compliance than that which currently exists under the act.
Thank you, and I look forward to your questions.
In a paper you published which is entitled Conflicts of Interest and Ethics in Government, you wrote the following:
[English]
In effect, the greatest sanction that the commissioners have at their disposal is political condemnation. If the commissioner finds that a member has violated the act, this may result in a political price on the affected member.
We know about this. We have used that in life.
[Translation]
Under a British Columbia act, the commissioner may recommend a $5,000 fine. Moreover—I am now going back to the sanctions—in the United States, people who are found guilty of being in a conflict of interest may be fined or even go to jail.
You said that the current fines of $500 were not very serious since the amount is not very high. You also stated that you do not believe very much in the effectiveness of monetary penalties or fines. However, you suggest that a formal reprimand—that is our translation—be sent to the Prime Minister's Office.
I don't quite understand what you mean by that. To me, a formal reprimand makes me think of a note in my child's schoolbook when he misbehaves in school and the teacher wants to let me know. Is that sufficient? Should there not be much more severe penalties?
:
Mr. Chair, I thank the committee for having invited me to appear today. This afternoon, I am accompanied by Nancy Bélanger, General Counsel, and Annie Plouffe, Manager, Advisory and Compliance.
This is my second appearance before this committee in the context of the review of the Conflict of Interest Act. In my first appearance, I outlined eight broad priority areas that are supported by many of the individual recommendations reflected in my written submission dated January 30, 2013.
[English]
I have followed with interest the testimony of other witnesses and the committee's questioning of them. I just missed the last witness by half an hour. I have noted in those discussions several areas where there appears to be some confusion or divergence of opinion and will address some of these today.
I note that in previous meetings the act was often confused with the conflict of interest code for members of the House of Commons. The only members that the act applies to are ministers and parliamentary secretaries.
Most members are subject only to the members' code, which is being reviewed separately by the Standing Committee on Procedure and House Affairs. I provided a submission on the code to that committee, and appeared as a witness before it last May. While some of the recommendations I have made for changes to the act and the code are similar, my remarks today focus exclusively on the act.
You've heard a broad range of opinions about the act's treatment of gifts and other advantages. The rule in the act is that any gift that may reasonably be seen to have been given to influence a public office holder is not acceptable. In addition, the act requires reporting public office holders, including ministers and parliamentary secretaries, to disclose and report publicly any gifts with a value of $200 or more.
This is simply a reporting threshold and has nothing to do with whether or not a public office holder may accept the gift whatever its value. As I have noted before, there is a commonly held misconception that gifts worth less than $200 are automatically acceptable. This is because many people confuse the idea of the reporting threshold with an acceptability threshold. There's no acceptability threshold and I'm not proposing one.
Because of the continued confusion between the acceptability of gifts and the requirement to report them, I've recommended lowering the $200 dollar reporting threshold, to a minimal amount; I suggested $30 dollars.
This amount seems to have become the focus of attention and has distracted from the main issue. The main issue is this: a lower reporting threshold could enhance transparency and trigger public office holders to contact my office, which in turn, would allow us to advise as to whether a gift is acceptable.
To be clear, I'm not recommending any changes to the acceptability rule. Public office holders would still not be able to accept a gift that could reasonably be seen to have been given to influence them regardless of its value. Some witnesses have commented that Canadians would not have an issue with elected officials accepting gifts worth $200 or even more. I disagree, particularly if a gift is given by someone who's a stakeholder. I expect the average Canadian would consider a $200 dollar lunch paid for by a stakeholder to be excessive and inappropriate, and would be unlikely to believe that it was offered without an intention to influence.
Some committee members have criticized my proposed threshold and come up with extreme examples of how it might be applied. I assure the committee that whatever the amount of the reporting threshold, ministers and parliamentary secretaries would still be able to accept gifts that pass the acceptability test, as well as true courtesy and protocol gifts, including many dinners and receptions, and even snow globes, usually.
Another area that I want to touch on is the act's divestment rules. Reporting public office holders are not allowed to hold controlled assets, whether or not a conflict of interest exists. I have recommended limiting the absolute prohibition and its related requirement to divest to apply only to those who have a significant amount of decision-making power, or access to privileged information, including ministers and parliamentary secretaries, chiefs of staff, and deputy ministers. It would only apply to other reporting public office holders if holding the controlled assets would constitute a conflict of interest.
Now, one witness suggested that the absolute prohibition should continue to apply to ministerial staff who are frequent targets of lobbying. Given the witness's first-hand knowledge of ministers' offices, I am inclined to accept his assessment and would have no problem with the absolute prohibition applying to them. I note, though, that many ministerial staff, especially those in junior positions, tend not to hold controlled assets, so divestment would rarely be required in any event.
I have found that Governor in Council appointees to certain boards and tribunals are most negatively and unnecessarily impacted by the current rule. An absolute prohibition could be retained for certain boards or tribunals according to their functions, but this would need to be clearly identified in the act. I believe that divestment in the case of most Governor in Council appointees should be required only if a conflict of interest exists.
The need to strengthen the act's fundraising prohibition is another area that I believe requires further comment. The act allows all public office holders, including ministers and parliamentary secretaries, to personally solicit funds if the activity does not place them in a conflict of interest. I have noted my concern about the potential for current and future conflicts of interest when ministers and parliamentary secretaries engage in fundraising, and I have recommended stronger rules in this area. It has been suggested that an absolute prohibition might be appropriate for ministers and parliamentary secretaries. I would be comfortable with that. I would not recommend any change to section 16 for other public office holders.
Another witness suggested writing into the act the fundraising guidelines currently annexed in “Accountable Government: A Guide for Ministers and Ministers of State”. This idea has merit, but these guidelines would have to be adjusted in order to serve as rules of conduct.
Post-employment is an area of the act most witnesses have indicated they would like to see strengthened. I would agree with this. I have recommended introducing reporting requirements for former reporting public officer holders during their cooling-off period. This would include requiring them to report any firm offers of employment received during their cooling-off period and to report on their duties and responsibilities in relation to their new employment.
It has been suggested that the cooling-off period be structured on a sliding scale according to various criteria. I do not see the need for such an amendment. There's already a one-year and two-year distinction, and I also have the discretion to reduce the cooling-off period when it's in the public interest to do so.
It's been suggested that the lobbying commissioner and I have made contradictory findings in relation to investigations. We have two different regimes that regulate the behaviours of two different groups of people: public office holders, and lobbyists. Our respective investigations of one particular case, the involvement of lobbyists in a political fundraising event, looked at the same set of facts but from different perspectives.
My focus was on whether a minister had contravened the gift rule by accepting the volunteer services and monetary contributions provided by the lobbyists. The lobbying commissioner focused on the conduct of the lobbyists and whether their actions placed the minister in an actual, potential, or apparent conflict of interest. The lobbying commissioner has interpreted conflict of interest to include conflicts with private interests, consisting of such things as political advantage.
However, I have found—in a different case altogether from the one that people think there's a problem with—that given the wording of the Conflict of Interest Act, political interests are not captured by the act's definition of private interest. In order for a political interest to be covered, the act would have to be amended.
[Translation]
Mr. Chair, this concludes my opening statement.
I am now at your disposal to reply to the committee's questions concerning certain points that have been raised, or any other matter pertaining to the Conflict of Interest Act.
:
Thanks very much, Mr. Chair.
Thanks, Commissioner, for being back with us again today.
We've been getting some answers but we've also been getting some more confusion involved in the situation. I don't think there is anybody sitting on either side of these tables who doesn't believe it is the right of any individual MP or organization to request a potential investigation.
Where the issue arises is how we handle it from there on, once the request is made. The process right now, in my understanding, is if I am making a request to you for an investigation, I can also release publicly that I'm doing it, and I think that is very harmful. We need to look at that portion of it. I'd like you to talk a bit about that. I know you've made some recommendations.
As well, once I have made the submission it's my understanding that you can broaden the aspect of what I have put forth in my submission. So you can add to that; I'd like to know under what circumstances you do that, and how that unfolds. Then if it's kept in confidence that there's an investigation going on, is there always a release tabled at the end of the investigation? Do people then know that, yes, in fact this was a frivolous investigation, or know that in fact this had merit to it?
It all boils down to how we protect the ministers and the reporting officers from frivolous and partisan attacks. I'm not saying it's one party against another. It can happen to any party. I just want to know how we can do that.
:
I'm much less turned on by penalties than I am by public reporting. I think I've said that before. I think what's important is the public report and the light being shed on whatever has been done wrong.
I think there is a place for administrative monetary penalties in the case of people who simply don't get their reports in on time, and it would be another mechanism to deal with contraventions where it wasn't worthwhile doing a full investigation. If somebody admitted they'd done something wrong, it would be an easy way to deal with it expeditiously.
I made a distinction in my last submission between administrative monetary penalties and penalties for things that were found to be a contravention. I recognize it seems that there's a 50-50 split out there as to whether big penalties should be imposed when somebody is found to have contravened. Personally, I don't think they're that important, but some people think they're really important.
The other issue is that it would become a different system, I think, if there were serious big penalties. It would become a criminal offence probably, and there's a question as to whether that belongs in the type of office that I now have.
In the context of the act that I'm now administering, I don't think penalties are necessary with the contraventions.