Evidence of meeting #27 for Access to Information, Privacy and Ethics in the 40th Parliament, 3rd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was screens.
A recording is available from Parliament.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
Now you also talk about communication with part-time public office holders and how historically you've had little contact with them. But I believe you are stepping up some of that communication.
Could you tell me a bit more about the part-time public office holder? They're not subject to any of the reporting requirements. Is that correct?
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
That's correct.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
Tell me the difference between the non-reporting and the reporting.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
It's a bit complicated, but quite clearly a part-time person doesn't have to report and a full-time person does. There are some general provisions that apply to both sets of people--the general rules of conflict--but any of the rules around disclosures or divestments don't apply to part-time people.
One area where I wondered whether people were complying with the act is with the receipt of gifts, for example. I don't have a regular connection with part-time public office holders, and I thought if I at least sent an annual letter reminding them of their responsibilities, maybe they would remember. I have no way of knowing. Maybe they're all complying, but I have no idea.
Liberal
The Chair Liberal Shawn Murphy
Pat, your time is up. Thank you very much, Ms. Davidson.
That concludes the first round.
I just want to clarify a point that Ms. Davidson raised, and I want to get this straight so that we're very clear, because I'm confused. You do an investigation, and if it's against a member of Parliament, your investigation is concluded and tabled with the Speaker of the House and then the Speaker can refer it to the Standing Committee on Procedure and House Affairs and do with it as the House may choose. Your only penalty or adjudication function, if there is a failure to file, is that then you can levy fines. Correct?
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Under the code or the act?
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
There are no penalties under the code.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
The MPs' code is a lot easier, in most cases, than the public officer holders'.
Liberal
The Chair Liberal Shawn Murphy
What happens if your investigation is against a public office holder who is not a member of Parliament and you find there has been a violation? What happens then?
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Do you mean just a simple violation?
Liberal
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Well, if they're seriously in some kind of a conflict of interest, then I would probably go into an investigation and make a report, ultimately, and it would be sent to the Prime Minister and made public. There's a different process with the reports following an investigation under the act or the code.
Liberal
The Chair Liberal Shawn Murphy
So in the investigation, if you find there's something wrong with an MP, it goes to the Speaker, and if it's a public office holder who is not an MP, it goes to the Prime Minister. But is it made public?
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Yes, and it also goes, of course, to the person complained against and the person who made the complaint just before it's made public.
Nancy Bélanger General Counsel, Office of the Conflict of Interest and Ethics Commissioner
It only goes to the Speaker if the investigation was done under the code. If it's an MP under the act, it would still go to the Prime Minister.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
That would be as a minister--
General Counsel, Office of the Conflict of Interest and Ethics Commissioner
Because he's a public office holder, as a minister.
Liberal
The Chair Liberal Shawn Murphy
Okay. We're now going to start the second round, five minutes, and we're going to start with Ms. Bennett.
Ms. Bennett.
Liberal
Carolyn Bennett Liberal St. Paul's, ON
You said in your last paragraph or so that you are concerned with the criticisms that have been laid against the office, and yet it seems that throughout your testimony you can only apply the law or you can only apply the code. Without a law reform commissioner, without having knowledgeable people look at these things, is it possible for you to prepare a submission as to what would be a law or a code that you could actually enforce?
I think people are concerned that since 2008, of the eight studies that you undertook, in each case it was that the complaints weren't founded, but I think people just didn't quite understand. Is that because the act doesn't have enough teeth?
I know even the Auditor General can only enforce the rules as they're written. She doesn't get to rewrite the rules to say it would have been better if the rules had been this way because it still stinks. How do you suggest as a committee that we go forward such that you had better legislation to enforce?
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Well, I'm nervous about getting too draconian a piece of legislation, because I think the more important thing is to instill the values in people that they follow.
Yes. I have done about eight investigations, and it's true that there was only one that I found a contravention. I found distaste in a couple of others, but not an official contravention.
The bright side to look on is that maybe people are obeying the rules. All I can say is that I honestly looked at the various proposals, and within the four letters of the act or the code there was not a contravention. But the fact that I looked into it and exposed exactly what happened is not a worthless exercise. Each time I do a report it hones what those requirements are to some extent.
I don't know what else to say. I probably could go back to my office and think of a few, but I haven't gone through the exercise of--
Liberal
Carolyn Bennett Liberal St. Paul's, ON
But without being draconian, you're saying that you only can levy a penalty if somebody is late. If they actually lied or omitted information, you have no recourse. I mean, the mobilization of shame sometimes works in these things, as sunlight is the greatest disinfectant, but you're actually not even able to do that, because it's not in the law or the code that if people don't tell you the truth, you can actually do anything.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Yes. I have to say this is a voluntary scheme. The whole principle is that it's voluntary. I have to rely on what I'm told. It's only when something that I've not been told comes to light that there's a problem.
I'm just thinking out loud at the moment, and I haven't given a huge amount of thought to proposing amendments at this point, except where I mention them from time to time in my reports. I think there might be room for some penalties for some of the substantive infractions, like being a director when you're not supposed to be one; holding some properties you're not supposed to hold; having outside activities when you're not supposed to have outside activities. None of those things have penalties attached to them. In a sense, they're not instructive enough or big enough to justify a full-fledged investigation, because there's nothing to investigate—they're a fact.
So there may be room for some penalties for infractions, as opposed to just for delays. I haven't thought a scheme through, but there are probably six, eight, or ten instances where you could identify them and say, okay, there should be a penalty if you do this.
Now, I don't impose a penalty every time somebody doesn't meet a deadline, because I would be imposing.... First of all, there's often a good reason they can't meet a deadline, and there's discretion as to whether I impose a penalty. But certainly, I virtually always impose a penalty if there's also some substantive infraction that went along with the failure to disclose. That's one of my guidelines as to when it's appropriate to impose a penalty.
But it is weird that there's no penalty for a substantive infraction—a simple, straightforward one. It's like a traffic fine.