Information & Ethics Committee on Feb. 16th, 2012

[Karen Shepherd]

One of my recommendations—actually, the first recommendation—was to remove the 20%. It's not capturing all of those who are coming forward and doing lobbying. It allows corporations or organizations to determine they are not hitting a threshold. If they do not hit the threshold, not only do they not register, but they are not filing the monthly communication reports either.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

So just do away with it?

[Karen Shepherd]

That's my recommendation, along with maybe looking at possible exemptions, like unpaid...or citizens who are coming to see you once a year. But limit the exemptions.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

When we talked about the administrative monetary penalties with witnesses who were before us, a lot of people supported that. Some did not. Some of the questions that came up were as follows. What would be the minimums and the maximums? And how would an appeal process work with the AMP, or would there be an appeal process?

Do you have comments on that?

[Karen Shepherd]

I can take the question in two parts. In terms of the amounts—and I've said this before to the committee—I would see that having a maximum of $25,000 would make sense, especially if the option to refer this very serious transgression, for repeat offenders or something, to the RCMP still existed in the equation.

In terms of the appeal process, when I determine a breach, I am acting as an administrative tribunal. This is something I take quite seriously with regard to ensuring that my decisions are fair and efficient and that they respect natural justice. Under the act, on the investigation side, before finding a breach of the code and tabling a report to Parliament, I am required to offer the individual an opportunity to present their views. I could just provide arguments, but in fairness, I provide a complete investigative report. I also allow them 30 days, and extensions are granted.

Under the act, there is no exemption from the review of the five-year prohibition, yet I put the same process in place.

[The Chair, NDP, Jean Crowder]

Commissioner, could I ask you to wrap up?

Thanks. The time is up.

[Karen Shepherd]

I'm sorry.

For the review appeal process regarding AMPs, I would see having a redetermination within the office that would be similar and the court maybe being another alternative.

[The Chair, NDP, Jean Crowder]

Thank you, Mrs. Davidson.

We'll go to Mr. Andrews for seven minutes.

[Scott Andrews, Liberal, Avalon, NL]

Thank you very much.

Welcome back, Madam Commissioner.

First of all, you followed the testimony. Are there any recommendations from any of the people who have presented before this committee that you would add to your list of recommendations? I know a lot of them are similar, but was there anything that stood out to you that would be worthy of our consideration, outside of your nine recommendations?

[Karen Shepherd]

Yes, Madam Chair, there was one, which I believe came up with the Canadian Bar Association. I was able to hear some of the testimony before coming in this morning. I believe the same recommendation came up that boards of directors, organizations, and corporations actually be included as in-house employees. I would support that. I'm not sure whether this was in the recommendations specifically, but I would say it should be whether they are paid or unpaid.

[Scott Andrews, Liberal, Avalon, NL]

Would you see any need to modify any of your recommendations in light of the testimony you've heard?

[Karen Shepherd]

No. I've heard different things in the testimony—some were for it and some expressed concerns—but my nine recommendations that I stand behind are based on my experience with the act during the last five years.

[Scott Andrews, Liberal, Avalon, NL]

We had Duff Conacher from Democracy Watch in talking about a sliding scale over five years. Do you see any merit in us looking at that particular provision?

[Karen Shepherd]

The five-year prohibition, as you've heard from others, is the longest, not only in this country but actually in any country in the OECD that has lobbying legislation. That said, my experience in administering the act is that I've received only 20 applications; I've granted five, and I've denied, I believe, six. There have been no challenges to these.

When you're looking at who's captured in the five-year prohibition...a sliding scale is one avenue, but right now students who are actually hired and are working in ministers' offices and who may go into leaders' and members'...who are hired under section 128 of the Public Service Employment Act are captured. I guess the question is, are these the types of individuals that the five-year prohibition was meant to capture?

[Scott Andrews, Liberal, Avalon, NL]

Going back, I think the Canadian Bar Association testimony was really good. One of the recommendations they mentioned, which Madam Davidson mentioned earlier, was that the Conflict of Interest Commissioner and your particular responsibilities under DPOHs be combined under one authority. So your responsibilities and those of the Conflict of Interest and Ethics Commissioner would all be streamlined into one single authority. I thought that had some very good merit, to try to have some consistency on both fronts. Do you see merit in that as well?

[Karen Shepherd]

The two acts, the responsibilities, were together at one point. Parliament made a very conscious decision to separate the two offices, so now the statutes we're looking at are quite different. What I heard was more in relation to maybe synchronizing the five-year prohibition—

[Scott Andrews, Liberal, Avalon, NL]

Yes, for DPOHs.

[Karen Shepherd]

There might be some merit in trying to do that.

[Scott Andrews, Liberal, Avalon, NL]

Okay.

We heard that some lobbyists were under investigation by your office and they never knew they were under investigation. You heard that testimony. Is that accurate? Do you care to respond to that type of accusation?

[Karen Shepherd]

The act requires that I do investigations in private. The one example that was referred to was that someone had been under investigation for seven years. I've only been in charge of the office since the office was created in 2008. What happened was that certain files had been transferred to the office, so there were 40 files that I actually inherited.

With regard to letting the person know—and I believe you heard that from my colleagues—they don't necessarily need to know at the beginning of a process, but at some point it is natural justice that before determining a breach, they have an opportunity to either present facts or—

[Scott Andrews, Liberal, Avalon, NL]

What stage of the process would you notify them they are under investigation?

[Karen Shepherd]

It might depend.... If I need to contact the individual to gain facts, then I would contact them as part of the interview stage, whether at the administrative review or an investigation. If I have reasonable grounds before even interviewing an individual to send the file to the RCMP, as I'm required to do now, then I would do so.

But before finding a breach of a code in those situations where I've continued on, I would look at ensuring the individual is given an opportunity—and I'm required to do so by legislation—to present his or her views. In the eight reports that I've tabled to Parliament, you actually see where they have been given that right.

[Scott Andrews, Liberal, Avalon, NL]

With respect to the RCMP, do you think this committee should have the RCMP come in to answer some questions regarding their aspect of involvement in the lobbyist legislation?

[Karen Shepherd]

I previously answered that when I came before the committee in December, and my opinion hasn't changed.

[Scott Andrews, Liberal, Avalon, NL]

It hasn't changed.

Getting back to the Canadian Bar Association...I know we talked about it at the beginning, but I want to come back to their recommendation that all board members be disclosed. They also mentioned elimination of the distinction between in-house lobbyists for corporations and in-house lobbyists for organizations.

Does that dovetail with one of your recommendations, or does that go a little further? I can't recall.