Information & Ethics Committee on Dec. 14th, 2010

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

And that percentage is...?

[Karen Shepherd]

It has been interpreted as 20%.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

The other point you make has to do with whether the meeting was arranged in advance. Does that mean that a person who happened to meet a lobbyist at a social function and was discussing business would not be required to register that contact, even though it was obviously for the purpose of securing a contract or some type of government help?

[Karen Shepherd]

That's one of the those areas of confusion, because of the “oral” and “arranged”. That's obviously a registerable communication: meeting at that social event and trying to obtain the grant or the contract. The organization or corporation would need to include that in determining whether they're hitting the significant amount of time that's registerable.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

I'm sorry, whether they're which?

[Karen Shepherd]

Whether they're hitting the significant amount of time, because that's a registerable communication. If they just happen to bump into each other and start talking, they would not need to file a monthly communication report. But if you were at a social event and the lobbyist asks to meet you in the corner in ten minutes, and you agree, then it has become “arranged”.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Okay, thank you.

[The Chair, Liberal, Shawn Murphy]

I have one point I want your comments on, Ms. Shepherd, and I think I've raised this with you before. I've listened to your testimony, I've read all of the materials, and I see what I consider to be a major problem with either your legislation or the way the legislation is enforced, and that is the lack of any demonstrable consequences for a violation of either the act or the code.

You've described here today that when you investigate a situation, and you see there is a violation, it goes to the RCMP. The RCMP have limited resources. They're dealing with serious issues—burglaries, murders, rapes, and home invasions. They're probably not very interested in this violation, as your statistics show. And even if the RCMP were interested, the file would go to the public prosecutor and he or she probably would not be interested. They have limited resources. Not every crime gets prosecuted and they have a certain amount of discretion. In this case, they probably wouldn't prosecute it. In one case, the prosecutor had the lobbyist write an essay.

This is not all your fault; it's not a reflection on you. But since lobbying registration came into force 22 years ago, we've never had a charge. No one has ever been charged with a violation of the act, and we've only had one person in all those years report it to the House. So the public would be looking at this and seeing that there aren't any demonstrable consequences. They would infer that lobbyists act with impunity, whether it's an act violation or a code violation.

If this is allowed to continue, I believe it will eventually bring your office into serious disrepute. Do you share my thinking? Do you see the requirement for a major legislative overhaul? This situation cannot be allowed to continue.

[Karen Shepherd]

On the lobbyists' code of conduct, the one option available to me--and it was available to my predecessor--is to table a report to Parliament. There were four reports on one individual.

[The Chair, Liberal, Shawn Murphy]

They were on one person.

[Karen Shepherd]

Yes.

What may be of interest, when you think of the consequences of name shaming, this individual had us in court until yesterday trying to have the reports removed from Parliament and have it determined that he wasn't performing lobbying activities that were registerable.

For some of the lobbyists there is quite a lot of concern about having their names in a report to Parliament. Some lobbyists have told me I take a very tough stance on rule 8, although I believe it's consistent with the court case that came out on conflict of interest. I think part of that is because if I were to find them in breach of rule 8 there would be a report to Parliament. They consider their names to be of value.

There is something there, so early in the new year I need to get some of the reports out, but they will be on the code of conduct, not fines or jail terms.

[The Chair, Liberal, Shawn Murphy]

We're into the second round of five minutes.

Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you, Mr. Chair.

I want to start where I left off. I think I have this right. There has been no investigation as yet initiated by you into the five registered lobbyists to whom a Conservative staffer provided confidential pre-budget documents. Is that correct?

[Karen Shepherd]

I've been watching the situation, but I have not officially opened something. I will be.

[Wayne Easter, Liberal, Malpeque, PE]

On my next question, you can either consider it specifically at committee this morning--there were certainly individuals named--or put together a hypothetical situation as if this had happened.

The specifics became very clear this morning at another committee, where lobbyist Andy Gibbons stated that he received the report from Kelly Block's assistant on November 18. He transmitted a paragraph of a summary of that evidence to a client, Merck Frosst. He also stated that he informed the committee about this on November 23, five days later.

I have two questions, and you can consider them hypothetically. First, the fact that he shared part of this confidential report with a client is a concern. What are your thoughts on that aspect of it? Second, it took this registered lobbyist more than five days to report this to the committee. Could those two points be considered a breach of the lobbyists' code of conduct?

[Karen Shepherd]

I just indicated that I'm going to look into this issue, because I think those are important points. On the negative impact, I'm not prepared to speculate at this point without looking into the matter.

[Wayne Easter, Liberal, Malpeque, PE]

One of the difficulties in this case is--

[The Chair, Liberal, Shawn Murphy]

Excuse me. You can ask the witness whether she's going to do an investigation, but we're not going to get into the investigation. I think you've plowed that ground enough.

The principle here I'm enforcing is that we're not going to substitute our investigation for the work the commissioner. You can ask her if she has started an investigation, if she will start one, and when she expects to conclude it. I think that's probably where we'll limit the questions.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Chair, it's not enough to plow the ground; it's nice to plant a crop.

[The Chair, Liberal, Shawn Murphy]

It's late in the year, Mr. Easter. It's wintertime.

[Wayne Easter, Liberal, Malpeque, PE]

I'll come back to the questions the chair raised earlier on penalties and decisions in investigations.

I imagine you have fairly extensive knowledge about other lobbying commissioners in other jurisdictions. Can you give us examples of how the powers of investigation in other jurisdictions compare with yours? Are there models in Canada or elsewhere that we could use as examples--what I think the chair was pointing out earlier--that provide some consequences for violations of the code or the Lobbying Act?

[Karen Shepherd]

That's something, Mr. Chair, I could do a proper analysis of in the provinces and provide the committee with some additional information.

What I can say at this point is that in Alberta and British Columbia, the possibility of administering monetary penalties exists in their legislation. That's something that's in their legislation. When I look at some of the federal legislation, Commissioner Dawson, with the conflict of interest code, has the ability to issue some penalties for individuals who don't fully disclose information to her.

I know that some federal institutions, such as the Canada Border Services Agency, for example, have a continuum. I think that's one of the things I would like to do some analysis of and provide the committee with the results in looking at our legislation, where an administrative or monetary penalty would make sense for lesser infractions. But I still think there's a reason to send some of the more serious ones to the RCMP.

So when you asked about an overhaul of our legislation, I'm not sure it would be a complete overhaul, but I think there need to be some changes on the enforcement side if we're trying to show consequences faster.

[The Chair, Liberal, Shawn Murphy]

Thank you, Mr. Easter.

Mr. Albrecht, for five minutes.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you again, Mr. Chair.

I refer again to your opening comments. On page 8 you referenced that since September 20, lobbyists are also required to disclose oral and arranged communications with MPs in monthly communication reports. And then you go on to say there's been a jump in volume of 1,000 and that you have “easily absorbed” that increase.

I guess the obvious question is how could you possibly have absorbed that level of increase? Or is it simply a matter of adding a bunch of names to an Excel spreadsheet?

[Karen Shepherd]

The lobbyist registration system is a web-based electronic system. It's a very robust system, so it can easily handle the additional volume of monthly communications.