Information & Ethics Committee on Sept. 20th, 2006

[Bernard Shapiro]

First of all, I think at the very beginning you quoted me correctly; it may not have been exact, but the sense of it is correct. I need to point out that the Office of the Ethics Commissioner has a certain range of purview relative to this matter. There are huge other kinds of issues that come up that would be quite beyond the powers given to me inside the act. So I wouldn't say that I'm in charge of confidence, period; I would say that I'm trying to enhance the confidence by doing things within my terms of reference that are appropriate in that respect.

[Paul Zed, Liberal, Saint John, NB]

I just wanted to add, while I'm speaking, that I didn't have a complaint, Mr. Tilson, just further to your comment earlier--

[The Chair, Liberal, Tom Wappel]

Make your comments through me, please.

[Paul Zed, Liberal, Saint John, NB]

Mr. Chairman, I didn't have a complaint. I was in fact sharing information that's been brought out. In fact, I quoted the source of my information. It was a CanWest news article.

I guess what I'm curious about is if a complaint were to be brought to you and that complaint involved the breach of laws of our country, do you have the jurisdiction to sanction and receive an investigation or begin an investigation if a breach of the Privacy Act occurred by a public office holder or by an employee of a public office holder?

[Bernard Shapiro]

Certainly, if the breach of law you're talking about is a criminal matter, for example, I would not have the jurisdiction. My obligation would be to refer it to the RCMP, as per the legislation. If the complaint is about a public office holder in terms of the breach of the code that we're talking about, which is the limit of my jurisdiction, then I would have to consider the matter and respond appropriately.

[Paul Zed, Liberal, Saint John, NB]

So, for example, the breach of the Privacy Act is not something that you.... In other words, are you in an ethical dilemma about whether you have jurisdiction over the breach of the Privacy Act?

[Bernard Shapiro]

I don't find myself in an ethical dilemma; I find myself in what I would call a nominal dilemma, that is, the title of Ethics Commissioner is much broader than the powers I actually have and am entitled to exercise. So it's a misnomer, in a sense. As I've said to the committee before, I think a better title would have been the conflict of interest commissioner because that is what in fact I'm entitled to do. However, that's a totally different issue.

[Paul Zed, Liberal, Saint John, NB]

Dr. Shapiro, the Privacy Act is a means to shield the names of those who request access to government documents, in part to protect them from possible reprisals on the part of government. If I were to suggest to you that a member of the Prime Minister's Office was in fact leaking the names of individuals who were making requests through the Privacy Act, or sharing those names, and that matter was brought to you, would that conduct be considered ethical?

[The Chair, Liberal, Tom Wappel]

Mr. Tilson on a point of order.

[David Tilson, Conservative, Dufferin—Caledon, ON]

It's essentially similar to a point of order that I raised previously. Now Mr. Zed has indicated that he has a complaint with respect to a particular context.

[Paul Zed, Liberal, Saint John, NB]

No, I don't have a complaint.

[The Chair, Liberal, Tom Wappel]

No, he did not say that.

[David Tilson, Conservative, Dufferin—Caledon, ON]

It doesn't matter. A member of this committee is asking the commissioner to comment on a matter where most likely--at least the way Mr. Zed is speaking--there could be an investigation. If there is any remote possibility of an investigation it would be most inappropriate for the commissioner, in my view, to comment on the line of questioning that Mr. Zed is proceeding with.

So, Mr. Chairman, accordingly, I believe his line of questioning is out of order.

[The Chair, Liberal, Tom Wappel]

I'm sorry, but I have to rule that your point is not well taken, again, for the following reason. I think the question is fair, but it could be restated in this way: if there is a breach of the Privacy Act, do you have any jurisdiction, in your view, with respect to breaches of the Privacy Act?

[Bernard Shapiro]

No.

[Paul Zed, Liberal, Saint John, NB]

Thank you, Mr. Chairman.

If you do not have jurisdiction for breaches of the Privacy Act, do you have jurisdiction for breaches of ethical conduct as it relates to the Privacy Act?

[Bernard Shapiro]

My jurisdiction is very limited--as I said before--much more limited than the title suggests. When the jurisdiction is limited to breaches of the code that would be applicable to any particular person, relative to inquiries, it would be further limited simply to ministers, secretaries of state, parliamentary assistants, etc., and not to public office holders, more generally speaking.

[Paul Zed, Liberal, Saint John, NB]

Mr. Chairman, if a breach of the code was considered a breach of ethics, and that code breach was in fact an illegality pursuant to the breach of the Privacy Act, would you, in fact, Dr. Shapiro, have the authority to commence an investigation should an investigation be launched?

[The Chair, Liberal, Tom Wappel]

Or could you request it, presumably?

[Paul Zed, Liberal, Saint John, NB]

Could you request it? That's right.

Thank you.

[Bernard Shapiro]

In any request for an investigation, my first response is always to know if it's within the powers that I have as the Ethics Commissioner. I don't want to try to decide in advance in a hypothetical situation whether or not that would be the case.

[Paul Zed, Liberal, Saint John, NB]

Thank you.

[The Chair, Liberal, Tom Wappel]

Thank you very much.

Thank you, Mr. Zed.

Now we go to the Bloc, Monsieur Laforest.

[Jean-Yves Laforest, Bloc, Saint-Maurice—Champlain, QC]

I'd like to focus on the legislation that governs you office, namely the Parliament of Canada Act. Pursuant to the Act, a parliamentarian may ask the commissioner to examine a matter related to the rules and obligations established by the Prime Minister -- in other words, the Prime Minister's Code. Pursuant to the Act, reports must also be made public, although some information may be kept confidential.

Can you be more specific as to what information must be kept confidential and what information must be disclosed?

[Bernard Shapiro]

There isn't any specific answer to the question you ask, in the sense that what might be kept confidential will differ d'un examen à l'autre, par exemple. What I do is reveal only enough information to support the conclusions I'm offering in the report. Remember that the investigations are conducted in private, and we try to guard confidentiality as much as possible. The only exception we make is when we feel we have to reveal something in order to support the recommendations the report is making. We don't know in advance what kind of information it's going to be.