As Kerri said, I'm an executive member of the CBA's national administrative law section, and I chair the CBA's committee on the law of lobbying and ethics.
Everyone covered by the Conflict of Interest Act holds a privileged position and each has volunteered for public service.
In Canada, public office holders are not conscripts.
Whether by seeking election or by accepting an appointment or employment, each public office holder freely chooses this responsibility. Public office holders voluntarily accept the public trust knowing they must maintain that trust and knowing they must be seen to maintain it.
The Supreme Court of Canada has observed, “preserving the appearance of integrity...[is]...as important as the fact that the government possesses actual integrity.”
In this context, allow me to highlight a few of our recommendations.
We agree with the Conflict of Interest and Ethics Commissioner that Parliament should close the loophole by which the Governor and Deputy Governor of the Bank of Canada are not covered by the act. We support the commissioner's call for greater transparency in reporting of gifts, including extending reporting to all public office holders, and reducing the $200 thresholds.
Perhaps the most significant shortcoming of the Conflict of Interest Act is that it lacks teeth. The act contains 44 rules, 19 positive obligations or duties, and 25 prohibitions. The prohibitions and one-third of the duties are unenforceable. No one can be charged for breaching a prohibition under this act. No one who defies a prohibition will pay a fine. Other than being named in a report to Parliament, there is no sanction for violating any of the 25 prohibitions or for breaching one-third of the duties under this act.
In that case, the rule of law is not respected. If the law sets rules of conduct, those rules must be enforceable. They must be enforced, and their enforcement must be clear.
What's more, the current scheme results in unfairness and inequality under the law. Laws are drafted by civil servants and passed by politicians. When civil servants draft and politicians pass laws on ordinary citizens, those laws include penalties. When civil servants drafted and politicians passed the prohibitions in this law, which applies to senior civil servants and politicians and to political aides and political appointees, penalties were absent.
We recommend that the commissioner be given authority to impose administrative monetary penalties for all contraventions of this act. We also recommend that the act be amended to require the government to address and respond to each breach.
Since the Federal Accountability Act was introduced in 2006, the Canadian Bar Association has been concerned about the restriction that prevents public office holders from belonging to a professional association like the CBA. Our recommendation 3 endorses the commissioner's request for authority to permit a reporting public office holder to engage in outside activities where these would not be incompatible with the reporting public office holder's public duties or obligations.
Political fundraising can give rise to conflict of interest issues, especially when the targets of fundraising are stakeholders of a politician's department or when the funds are solicited from lobbyists who are lobbying the politician or his or her office or department. The Prime Minister has issued sound guidelines for political fundraising in the guide called “Accountable Government”. Unfortunately, the fundraising rules in “Accountable Government” do not have the force of law and cannot be legally enforced. We recommend taking the Prime Minister's fundraising rules and writing them into the Conflict of Interest Act.
We disagree with the commissioner on automatic divestment of assets whose value could be affected by government policy. She wants to reduce from 1,100 to as few as 140 the number of people subject to automatic divestment and to replace it with case-by-case divestment. We believe automatic divestment of controlled assets should remain required of all employees of ministers' offices, except students.
Contacts between lobbyists and ministerial aides number in the thousands. Much of this lobbying relates to decisions that could affect the value of publicly traded stocks and other controlled assets. This is reason to maintain the current law, which provides that no minister's office employee shall own a controlled asset.
Finally, we are concerned that statutory reviews such as this one are not taking place during the timeframes required by law. These statutory reviews are more than administrative or housekeeping matters. They were mandated by Parliament to provide a formal outlet for stakeholders and other citizens to comment on their experience with the operation of legislation that might have been controversial or passed quickly or embedded in omnibus bills.
A review of the Conflict of Interest Act was required by July 2, 2012. However, the House of Commons did not assign this committee to conduct the review until December 10, 2012. The CBA is deeply troubled by the repeated disregard of deadlines established by statute. The Parliament of Canada Act should be amended to mandate the Speaker of the House to assign the appropriate committee for a statutory review if none has been assigned by the deadline.
Thank you very much.