Information & Ethics Committee on Sept. 22nd, 2011

[The Chair, NDP, Nathan Cullen]

Thank you very much, Ms. Brosseau.

Mr. Del Mastro, we're going to wedge in just a few minutes. With the indulgence of our witness, we're going to go just a little bit over time.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thanks very much, Mr. Chairman.

You know, it never ceases to amaze me. This week we see in the press members of the NDP out actively lobbying or indicating that they believe folks trafficking in narcotics just require more love, but Sébastien Togneri should be publicly flogged, and perhaps executed, if they could get their heads around execution--

[Charlie Angus, NDP, Timmins—James Bay, ON]

A point of order, Mr. Chair.

[The Chair, NDP, Nathan Cullen]

One moment, Mr. Del Mastro.

Mr. Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

That's really the kind of stuff for saying—

[Dean Del Mastro, Conservative, Peterborough, ON]

Charlie, come on. You've said outrageous things about Sébastien this morning. Come on--

[The Chair, NDP, Nathan Cullen]

Excuse me, Mr. Del Mastro.

Mr. Angus.

Mr. Del Mastro, I think the line of questioning that we'll have for—

[Charlie Angus, NDP, Timmins—James Bay, ON]

We've never suggested that Mr. Togneri should be flogged or executed. I think he should retract that comment.

[The Chair, NDP, Nathan Cullen]

It will be up to Mr. Del Mastro whether he chooses to retract or not.

Mr. Del Mastro, if you just focus your attention on—

[Dean Del Mastro, Conservative, Peterborough, ON]

These character assassinations the likes of which you've undertaken, Charlie, are just as harmful--

[A voice]

[Inaudible--Editor]

[The Chair, NDP, Nathan Cullen]

Mr. Del Mastro, please: through me and to the witness.

[Dean Del Mastro, Conservative, Peterborough, ON]

Ms. Legault, just two crown corporations you've specifically indicated have performances that you consider to be substandard. In the case of Canada Post, you've said they don't have a lot of requests, but they're not answering them satisfactorily.

In the case of the CBC, they're using an exemption that provides for journalistic kind of integrity...I suppose it's the way I would put it. Are they upholding the spirit of the Accountability Act? Is that really what we're talking about? CBC is responding. Canada Post is responding. Is this really about not upholding the spirit of the act? Is that really why you're flagging them?

[Suzanne Legault]

Each of these institutions had really serious performance issues, for different reasons.

In the case of CBC, when they first became subject to the act, they received an enormous amount of requests—over 500. They really did not anticipate getting so many, and it caused a delay and a backlog in their office. The second thing with the CBC is that the provision that applies to CBC in the act says:

This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative, or programming activities, other than information that relates to its general administration.

In the case that is before the court—and of course I cannot go into detail because it is to be heard in the Federal Court of Appeal on October 18—they're saying that I do not have the right to review the documents that are subject to the request because the act does not apply. I'm saying that I have the right of review in order to determine whether they're applying this provision appropriately. So that's the nature of the case.

That being said, this language seems to come from the Broadcasting Act. It hasn't been tested under access to information. We will have to see. I anticipate that we are probably going to have a lot of litigation over the interpretation of this provision over the years.

Canada Post is a different issue. My view, and I expressed this to the head of Canada Post yesterday, is that they don't have a proper delegation order in the organization. Everything needs to be reviewed at the very high level, which is contrary to Treasury Board Secretariat best practices. The ATIP coordinator should be able to make decisions on the release of information. You can ask the president of Canada Post why he's keeping it this way. I think it's leading to a lot of delay. That being said, again, Canada Post was given a specific provision in the act. It's a crown corporation. What does it mean in the context of a crown corporation?

By the way, each crown corporation has a different makeup. CBC is not funded in the same way as Canada post and not in the same way as VIA Rail. These provisions that apply to them look at their competitive market or their commercial interests. They're all competing in different markets. I used to do antitrust, and each market is going to be different. Snail mail is going to be a market. Courier mail is going to be another market. It's generating a lot of complexity, sir, in the analysis.

Again, there is probably going to be a lot of litigation before we have full understanding of the meaning of these provisions.

[The Chair, NDP, Nathan Cullen]

Thank you, Madame Legault.

Thank you, Mr. Del Mastro.

We've gone a little bit over time.

Again, I thank you for your testimony under short notice.

[Suzanne Legault]

Thank you.

[The Chair, NDP, Nathan Cullen]

To committee members, there will be an offer, which we are working on between our offices, to meet with some of the access to information commissioners from other countries who will be visiting Ottawa next week. Stay tuned for that. I think it will be a good opportunity for witnesses from other nations to tell committee members what they do and the various stages other countries are at.

Again, Madame Legault, thank you very much.

[Suzanne Legault]

Thank you.

[The Chair, NDP, Nathan Cullen]

We'll take a small pause while we change over to the Commissioner of Lobbying.

[The Chair, NDP, Nathan Cullen]

Let's bring the meeting back.

My apologies, Ms. Shepherd, as we're going to be rushing you a little bit.

As committee members will know, today in the House of Commons is being treated as a Friday, so question period will be up at 11. We'll be very tight with time, and I'll try to give members warning as they're getting closer to their time limits.

With respect to a meeting with other commissioners, Madame Legault has extended an invitation to the other commissioners who will be visiting Canada next week. We'll update committee members. We'll have to seek a small budget to enable us to sit down with them. I think we should host them at a lunch; it would make sense potentially after our committee meeting next Thursday. So you may want to pencil that in right now.

Ms. Shepherd, are you ready to go, or would you like me to run out the clock a little more while I talk?

[Karen Shepherd, Commissioner of Lobbying, Office of the Commissioner of Lobbying]

No. I can start.

[The Chair, NDP, Nathan Cullen]

Okay. Thank you, and welcome to committee. Thank you for coming on such short notice. You have up to 10 minutes.

[Karen Shepherd]

Thank you.

Good morning, Mr. Chair and members of the committee.

I am pleased to be here to provide you with an overview of my office and to outline my priorities for 2011-2012. I am joined by René Leblanc, Deputy Commissioner.

My mandate, which comes from the Lobbying Act, is threefold: maintain the registry of lobbyists; raise awareness about the Lobbying Act and the Lobbyists' Code of Conduct; and ensure compliance with the act and the code.

Lobbyists are individuals who are paid or employed to communicate with public office holders to change the state of play concerning government legislation, regulations, or policies or programs, or to try to obtain government grants or contributions. The Lobbying Act recognizes that lobbying is a legitimate activity. The transparency provided by the act is central to enhancing the public's confidence and the integrity of decisions taken by government.

The registry of lobbyists is our primary tool for ensuring the transparency of lobbying activities conducted at the federal level. The registry is the online application that lobbyists use to publicly disclose their lobbying activities. The number of registered lobbyists currently stands at 5,000.

In 2010-11, we streamlined the processing of registrations and managed to decrease the time it takes for lobbyists to register, from an average of 20 days to about three. I believe this improves transparency, as information about federal lobbying activities is now available to the public that much sooner.

Another important aspect of my mandate is to foster awareness of the Lobbying Act. I believe that communicating the rationale and the requirements of the act and the code leads to better compliance.

In 2010-2011, my staff and I met with approximately 1,500 individuals to explain the requirements of the act and the code. These events also provided opportunities to receive feedback on how we are doing and helped inform my recommendations for amendments to the act.

The enforcement of the act and the code is supported by an extensive program of monitoring, verifications, administrative reviews, and investigations. Every year my office verifies several hundred individuals, corporations, and organizations after learning that they have lobbied federal public office holders.

In recent experience, we found that the majority had filed returns in the registry of lobbyists or that registration is not required. Last year my office verified the accuracy of about 400 monthly communication reports. Our experience is that only a small percentage of them contained errors such as incorrect dates or job titles. In some cases, the communication did not require a report, as it was not carried out orally or arranged in advance.

In 2010-11, I initiated 37 administrative reviews and closed 31. These reviews look into suspected or alleged contraventions of the Lobbying Act or the Lobbyists' Code of Conduct that are brought to my attention either through monitoring activities or complaints. Administrative reviews, which are fact-finding processes, result in reports that assist me in determining a suitable means of compliance.

There are four possible outcomes following an administrative review. One is that the allegation is unfounded, in which case I inform the relevant parties and close the file. In another, I may open an investigation if I determine that I have reason to believe it is necessary to ensure compliance with either the act or the code. I may also determine that I have reasonable grounds to refer the matter to the RCMP.

Lastly, I may determine that while the allegation is well founded, the gravity of the transgression is low and does not warrant referring it to the RCMP. In these cases, I am choosing to use alternative compliance measures. These measures include educating the person on the requirements of the act or requesting that a correction be made to the registry of lobbyists. These cases are also subject to further monitoring.

In 2010-11, I opened eight new investigations and closed six. Three of the six that were closed resulted in my finding the lobbyists in breach of the code. As required by the act, I tabled three reports to Parliament detailing my findings and conclusions. For the other three cases, I exercised my authority to cease the investigation, either because the subject matter had been dealt with in previous or impending reports to Parliament or because I considered the evidence to be insufficient.

Since 2008 I have referred six files to the RCMP, as I had reasonable grounds to believe that a person had committed an offence under the Lobbying Act. In all six cases the RCMP informed me that no further action would be taken.

A five-year prohibition on lobbying the federal government after designated public office holders leave office was introduced in the Lobbying Act in 2008.

Former designated public office holders may apply for an exemption from the five-year prohibition. I have the authority to grant one if doing so would not be contrary to the purpose of the act. Since 2008, I have received 17 requests for exemptions and have granted 4.

I would now like to focus on my priorities for this year.

My budget is about $4.6 million, and I currently have 28 employees. Each year nearly a quarter of my budget goes to administer the registry of lobbyists. In 2011-12, my priorities will be to implement service standards for registration processing and to have searching and reporting capabilities that are more effective and easier for clients to use.

Outreach activities represent about 20% of my budget. In 2011-12, I will continue to reach out to various audiences to raise awareness about the act and the code. We have also undertaken a complete overhaul of our website to improve functionality and simplify navigation. The work is expected to be completed by December.

At any given time, my office has a caseload of about 50 files. They range in complexity and include administrative reviews, investigations, and reviews of applications for exemption from the five-year prohibition on lobbying. A quarter of my budget goes towards those enforcement activities. In 2011-12, my priority in this area was originally to develop an automated case management system to facilitate the tracking and reporting of reviews and investigations. Unfortunately, this project has been delayed.

I am proud of all that my office has accomplished in its first three years to advance the transparency of lobbying activities. My objective is to continue to build on our successes to refine and streamline our operations, and to strive to administer the Lobbying Act more effectively.

To that end, I intend to adhere to the spirit and intent of the government's strategic and operating review exercise. I have undertaken a review, and I intend to present the results of this review to this committee and in my next report on plans and priorities.

In closing, I would like to note that the Lobbying Act is eligible for its five-year review. At my December 2010 appearance before this committee, I outlined a number of issues related to the review of the act. In March of this year, I tabled a report containing my recommendations to improve on the current legislation.

Although many aspects of the act are working well, my experience with the legislation leads me to believe that further amendments are necessary to improve transparency and ensure better compliance.

To improve transparency of lobbying activities, I am recommending that the act be amended to increase the number of individuals and activities covered by the act, for example, by removing the provisions regarding the significant part of duties and those requiring that a communication be arranged and advanced.

In terms of enforcement, the act prescribes significant fines and jail terms for offences, yet no charges have been laid. My experience points to the need for a system of administrative monetary penalties that would provide me with penalty options somewhere among my current practices of education, correction, and monitoring for less serious transgressions as well as for the more severe ones, including reports to Parliament and referrals to the RCMP.

It is clear to me that even minor transgressions, such as habitual late filing, may negatively affect the transparency of lobbying activities. In order to deal with such transgressions, the Lobbying Act currently offers no enforcement alternatives. An administrative monetary penalty system could potentially address the lack of flexibility in terms of enforcement options currently provided for in the act.

Not all transgressions have the same gravity. An administrative monetary penalty system would introduce a continuum of progressively more severe sanctions more appropriate to the existing range of possible breaches. Publicizing administrative monetary penalties applied would also serve as a general deterrent to all lobbyists.

I look forward to working with Parliament on the legislative review and other matters.

Mr. Chair, that concludes my remarks. I look forward to answering any questions you and the committee members may have.

[The Chair, NDP, Nathan Cullen]

Thank you very much, Mrs. Shepherd.

The first seven minutes are yours, Mr. Angus. Go ahead.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Madam Shepherd, for your appearance this morning. It has been helpful to have you come before our committee and it was certainly helpful to read your report.

I believe we have in the nature of some 5,000 registered lobbyists on the Hill. Is that correct?