Evidence of meeting #33 for Access to Information, Privacy and Ethics in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was lobbyists.
A recording is available from Parliament.
Liberal
Borys Wrzesnewskyj Liberal Etobicoke Centre, ON
My question was when, an approximate timeline. I know you can't say exactly, but how long do you envision this taking?
Commissioner of Lobbying , Office of the Commissioner of Lobbying
A couple of weeks. In a week or two I should be able to get back to the committee on that particular point.
Liberal
The Chair Liberal Paul Szabo
Thank you very much.
Commissioner, there was a significant Federal Court of Appeal ruling on Democracy Watch v. Campbell and the Attorney General concerning the interpretation of rule 8, attempt to influence, which is the subject matter of rule 8. It appears that this has a significant change in the historic interpretation or application of rule 8.
Could you please have Mr. Bergen advise the committee of the significance of that decision and how it will affect how we move forward in interpreting what people may or may not have done and the extent to which things have to be proven?
Commissioner of Lobbying , Office of the Commissioner of Lobbying
I'll commence, and if Bruce has something to add, I'll ask him to jump in.
One of the things I've actually been doing with my staff, Mr. Chair, is finalizing some guidance and so on that I'll be hoping to publish within the next week or so, which will actually talk about the court ruling and the guidance that will be out there for lobbyists.
You're right. The court ruling was quite significant if you said that the previous guidance that had been used was unreasonable. Part of what it looked at was that the undue influence in the way it was characterized before was basically permitting some actions to occur while not allowing other conflicts of interest. I think it rightly said that no conflict of interest should exist that would affect the integrity or confidence in government decision-making.
The ruling also looked at the fact that the undue influence is part of the continuum of conflict of interest in the issues where there is divided loyalties. In other words, the public office-holder has a duty to protect the public good and there shouldn't be a competing interest in terms of their private interest occurring. The ruling before looked at the undue ruling...if the action occurred after the activity. So had there been a demonstrated influence in terms of affecting the public office-holder's actions in terms of whether they had changed their mind, now what is there from the court ruling is whether there is a real conflict of interest or the appearance of a conflict of interest. The guidance that I'll be issuing will actually now talk about the apparent conflict of interest. Most reasonable people come to the determination that a conflict has occurred. For example, where before you would have had the activity and looked at it afterwards to see if the member had changed their mind, the way I'll be looking at each case, and it will be a fact of each case, will be once the activity occurs. Once the activity occurs, whether it's a fundraising event or the gifts being given, it will be at the moment that this particular activity or action has taken place by the lobbyist that the conflict of interest potentially could occur. It will be this moment of time that I would be focusing on.
Liberal
The Chair Liberal Paul Szabo
As I understand it, all that needs to be satisfied is that there was a clear attempt to influence. You don't have to in fact be seen to have influenced.
Commissioner of Lobbying , Office of the Commissioner of Lobbying
It's not an attempt, with all due respect, Mr. Chair; it's the reasonable apprehension of an apparent conflict of interest. So there doesn't have to be the attempt to influence. If most reasonable people would think that particular action has created a competing private interest for the individual, that would be what I would be looking at.
Liberal
The Chair Liberal Paul Szabo
In the past, to be in breach of rule 8, you must have been shown to have in fact exerted influence.
October 27th, 2009 / 10:35 a.m.
Commissioner of Lobbying , Office of the Commissioner of Lobbying
Undue influence would have been the action, yes.
Liberal
The Chair Liberal Paul Szabo
We've had a fair bit of discussion here, on the fringes of legitimacy, about the Prime Minister's Office, and earlier I had raised with you indirect lobbying of sorts, where you go through another person who is not under your mandate or covered by your umbrella but has influence for other reasons with a public office-holder, so if you worked through an intermediary.... First, is there anywhere we should look for a definition of the Prime Minister's Office and who that would embody?
Senior Counsel, Office of the Commissioner of Lobbying
I'm not sure if I understand, Mr. Chairman. Are we looking for that within the Lobbying Act?
Liberal
The Chair Liberal Paul Szabo
If I look at this, it says the Prime Minister's Office is cutting off communications. Who is the Prime Minister's Office?
Senior Counsel, Office of the Commissioner of Lobbying
We're speaking about the Globe and Mail article. Is that correct?
Liberal
The Chair Liberal Paul Szabo
I guess we're speaking generically. I don't know for our purposes whether or not any element of the Prime Minister's Office, as may be defined directly or indirectly, relates to lobbying activity that would fall under your mandate.
Senior Counsel, Office of the Commissioner of Lobbying
I'm not sure. I'm certain you'd be able to find a definition of what constitutes the Prime Minister's Office somewhere on the PCO website--the PMO website, for instance. But I don't think that office is created by statute, as are government departments and the commissioner's office, for instance, which is created by statute in the Lobbying Act. So that's a difference.
Liberal
The Chair Liberal Paul Szabo
I raise it only because I think, in the issue that was touched on earlier by Mr. Wrzesnewskyj, really there isn't a specific individual who's a public office-holder who is being lobbied. It seems that the culture has morphed itself in a way in which I can effectively do the same thing without going straight to that person. So it's implied lobbying. But you don't have anything under the act that allows you to in fact deal with the avoidance provisions in the Conflict of Interest Act and also in the Code of Conduct for Members of Parliament, which are in the Standing Orders. There is also a similar thing. It's either section 25 or 26 under the Code of Conduct for Members of Parliament, anti-avoidance provisions or evasion provisions. I think that's probably something the committee may want to look at, simply because if they can't get it this way, the system seems to find another way to get what they want, and it is a difference in your act, or an addition in the Conflict of Interest Act that is not in your act. And you know how long it takes to amend legislation in this place.
Senior Counsel, Office of the Commissioner of Lobbying
If I may, one thing, of course, is that these amendments to the Lobbying Act have only been in place for a little over one year, and the Conflict of Interest Act that Ms. Dawson administers is also quite new. So I think that during this initial period of time, items like the one you have just mentioned are coming to light—maybe a definition in one statute doesn't quite mesh entirely well or 100% with that in another statute. I think that's part of the process of beginning to understand how the new legislation works and how best to implement it.
Liberal
The Chair Liberal Paul Szabo
Well put.
On that note, I'm going to thank you all.
Madame Freeman, vous avez une question.
Please, go ahead.
Bloc
Carole Freeman Bloc Châteauguay—Saint-Constant, QC
I would like to ask a question concerning BPR, a firm that is not registered. In the Makhija case, it was said that an investigation could be conducted even if the lobbyists were not registered, whether they were individuals or companies.
We are waiting for the decision of the Supreme Court. Has it ruled as to whether it would hear the appeal?
Commissioner of Lobbying , Office of the Commissioner of Lobbying
If I understand correctly, the situation in the Makhija case was exactly the same. The power of the registrar of lobbyists to investigate offences under the act was challenged. The Federal Court, I think it was in December 2008, made a decision holding that the registrar did in fact have that power. Now the act says very clearly that I have the power to investigate offences under the act or the Code of Ethics.
Bloc
Carole Freeman Bloc Châteauguay—Saint-Constant, QC
So you may now do those investigations, with no problem.
Senior Counsel, Office of the Commissioner of Lobbying
I would like to add that as a result of the decision of the Federal Court of Appeal, the lobbyist in question, Mr. Makhija, has asked the Supreme Court whether it could hear an appeal of his case, but his application was denied. So it will stay at the Federal Court of Appeal level, once again. The date is set for January 2010.
Bloc
Carole Freeman Bloc Châteauguay—Saint-Constant, QC
You have the power to investigate, but you also have the power to cease investigations if it appears, due to elapsed time, that it would serve no useful purpose.
Could you give some examples? If there has been an offence, an omission, a wrongdoing, I do not understand why the offence would be wiped out by the lapse of time.
I also note that in the case involving Democracy Watch, where you were asked to consider rule 8, the Federal Court of Appeal refused to refer the complaint because too much time had elapsed. So in two cases where there was a basis for the case, a ruling was refused because of the elapsed time.
Could you explain what the justification for that provision is?
Commissioner of Lobbying , Office of the Commissioner of Lobbying
Mr. Chair, that is a very interesting question.
I do not have any examples to offer because honestly, to date, I have never refused to consider a case because too much time had elapsed. However, if it has been a long time, it may be difficult to find testimony, people who can provide evidence. It may be that people will have died since 10 years ago and there are no longer any reports about the incident. In that case, it can be difficult to do...