Information & Ethics Committee on Oct. 20th, 2009

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you.

That's all I had, Chair.

[The Chair, Liberal, Paul Szabo]

Mr. Wrzesnewskyj, please.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Mr. Poilievre had asked about the success of this new act. So we have one success, I guess, if you could call it that, of a minister of the crown being found in breach of the Conflict of Interest Act--Minister MacKay. The fine you applied was $200. Do you think that's really adequate?

[Mary Dawson]

Obviously I did, because that's what I applied, but I'm only allowed to go up to $500. It was the first one I had imposed. How much is at my discretion. I believe this was an inadvertence on his part. So there you go.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

I find it interesting that our colleagues across the aisle would find a matter of such seriousness, that a minister of the crown has been fined, to be so humorous.

As the commissioner, but also as a Canadian, the first time you saw that photograph of the oversized cheque, of MP Keddy holding that cheque with his signature for infrastructure paid for by the Canadian taxpayers, but even worse with a large Conservative logo on it, was there a sense of disappointment as a Canadian, besides being the commissioner?

[Mary Dawson]

I think because I'm the commissioner I should be very careful about what I say. I will say what I have to say when I issue my report, after I finish the investigations.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

You previously said you cannot use public office for private interest. On that particular cheque we see a large oversized Conservative Party logo replacing the flag of Canada, replacing the Maple Leaf. Will you consider this an inappropriate way of using public office for the private interest of a political party?

[Mary Dawson]

I can't comment on anything I'm investigating until I'm through. I'm sorry.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you.

[The Chair, Liberal, Paul Szabo]

Mr. Albrecht, please.

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

Thank you, Mr. Chair.

I will just point out as well that I'm not a regular member of this committee.

Madam Dawson, thank you for being here today.

I want to focus for a few minutes on the divestment of controlled assets that you point out on page 14. In the first sentence you say that since taking office you've been concerned about the apparent over-breadth of the provisions in the act. You go on in the last part of that paragraph to indicate that this prohibition applies to all controlled assets held by a reporting public office-holder, whether personally, in a joint account with a family member, as a trustee for a beneficiary, or executor, and so on. Certainly, I have some concerns along with you there.

But then on page 16, in the second paragraph, you indicated that as of March 31, 2009, there were roughly 1,100 reporting public office-holders, and 119 had divested themselves of controlled assets through sales at arm’s length. Then in the very last sentence of that paragraph, you said that of the 95, only five involved assets that would have posed a risk of conflict of interest.

The next paragraph goes on to speak about another category, in which only four would have posed a potential conflict of interest.

So in total, that's only nine in all of these.

Then at the very end of that section of your report, page 18, in the last paragraph you indicate that you believe some consideration could be given to providing the commissioner with some discretion in setting compliance measures in appropriate cases. Obviously, based on your statistics here, I can't at first blush disagree with you. But would this not add an undue burden on your staff in terms of making these individual decisions on every individual case? Would it actually add to the subjectivity of the decisions that are being made, as opposed to having it clearly identified within the act?

[Mary Dawson]

Well, I think the criterion would obviously be whether there was any potential conflict of interest, which isn't all that hard to figure out. We have to figure that out anyway when we're assessing the matter.

The fact that I can say that five posed a conflict and four were the other case suggests that it's a judgment call that we can make. That would be the main criterion, of course.

We have some difficult cases. My point there was that there's an awful lot of administration and churn spent over these difficult cases, and if there are only nine of them, there's less time that we have to spend on the difficult cases.

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

But looking at the big picture, right now, the way I understand it--and I'm not a financial adviser--it indicates here that registered retirement savings plans must also be held in a trust that is separate from other investments. Is that accurate, or am I misunderstanding that?

[Mary Dawson]

Yes, it is. Some are covered and some are not. I'll let Lyne respond to that.

[Lyne Robinson-Dalpé]

It's only those registered retirement savings plans that have controlled assets in them. So if you have one that contains all exempt assets, then it doesn't have to be placed in a trust.

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

So that would explain as well the low numbers of those who have had to divest, because out of 1,100 you have only 117. That's a very small percentage. So the rest have RRSPs, but not in this category?

[Lyne Robinson-Dalpé]

Right.

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

Thank you. That's helpful.

[The Chair, Liberal, Paul Szabo]

Thank you, Mr. Albrecht.

Commissioner, on your website there's a link to a Federal Court of Appeal case with Democracy Watch, Barry Campbell and the Attorney General of Canada. It deals with the interpretation of rule 8 under the Lobbyists' Code of Conduct. It was a very significant decision because, previously, to say someone had undue influence over a public office-holder you had to prove that there was influence. The decision of the Federal Court of Appeal was that all you have to demonstrate is that there was an attempt to influence.

That is very significant. The Commissioner of Lobbying has advised me that rule 8, improper Influence, says: “Lobbyists shall not place public office-holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office-holder.” It has always been that you have to demonstrate that there was an influence. The Federal Court of Appeal decision is that there needs to be evidence only that there was an attempt to influence.

Now, because it's a Federal Court decision, have you adopted that lighter or less onerous burden, that to determine whether or not a public office-holder, under the Conflict of Interest Act...? It would have to be demonstrated only that the attempt was there, and that the public office-holder.... We don't know whether or not they were influenced, but it really doesn't matter. Is your office now adopting that Federal Court of Appeal ruling with regard to onus of proof?

[Mary Dawson]

I think that onus of proof, by and large, applied in our act in the first place.

[The Chair, Liberal, Paul Szabo]

Okay, fair enough.

Yes, Nancy.

[Mary Dawson]

Did you want to say something else?

[Nancy Bélanger, General Counsel, Office of the Conflict of Interest and Ethics Commissioner]

I would simply add that in the lobbying regime, it was a code of conduct; it was not enshrined in law. In our piece of legislation, we actually have a definition of what a conflict of interest is. It's giving an opportunity to a member. So the concept of just an appearance or an attempt is in there when you have an opportunity, but it's looking at the issue from the lobbyist's perspective, and the other one is from the public office holder's.

So I would say that the Federal Court of Appeal's decision on the lobbyist issue is not quite on point, because we have a definition of conflict of interest in our act.

[The Chair, Liberal, Paul Szabo]

But the interpretations are now consistent in terms of identifying an attempt to influence or...?

[Nancy Bélanger]

But we're not investigating the lobbying.