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.
4:35 p.m.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Thank you, Chair.
Commissioner, this is probably going over old ground and you've probably been asked these questions here before, because sometimes reports are issued before annual reports and when you come we ask those questions, and...anyway. But I wanted to go back to some of the reports you made and some of the findings you had.
In the Watson report you talked about how the definition of “friend” was crucial in your determination in that. Even though in this situation people had been representing themselves as friends or pals, you found that they weren't friends or pals.
Can you just say something about your determination in that case and how you came to that conclusion?
4:35 p.m.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Yes. I mean, that was a bit of an odd case. The question is, what constitutes a “friend”? I've forgotten the terminology now. It's been a while since I've thought about that case.
Nancy, would you like to take that one?
4:35 p.m.
General Counsel, Office of the Conflict of Interest and Ethics Commissioner
If I understand the question correctly, it is what is the definition of “friend”?
4:35 p.m.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Yes. Somebody represents themselves as a friend publicly, yet in the report it was found that this wasn't a friend for the purposes of the act.
October 26th, 2010 / 4:35 p.m.
General Counsel, Office of the Conflict of Interest and Ethics Commissioner
It was an interesting case because it was people who worked together. The commissioner made reference to the fact that people often refer to each other as friends, but when in fact you look at the type of people the act was meant to cover for friends, in relation to the act, because it was right next to the term “relative”, it had to mean someone with whom you had close proximity. Therefore, in this particular case, the commissioner found that they were not friends.
If you give me two minutes, I could probably find the actual words the commissioner used to....
4:40 p.m.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Is it “a close bond of friendship, a feeling of affection or a special kinship with the public office holder”?
4:40 p.m.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
That's right. We tried to come up with a bit of a description as to what is not to be covered.
The weird thing about that particular case was that the person who was accused of having contravened the act actually referred to this individual as a friend. I came to the conclusion that that was just a common method that he.... He called everybody his friend, like “my friend”, so that's where it got kind of mixed up.
We concluded, from all the investigation we did, that he was simply not what you would call, as in the expression we used, a close, intimate friend.
4:40 p.m.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
So that's another place where “friend” wasn't defined in the act, and you had to make some determination based on where it was placed and what you understood the intent of that passage to be.
4:40 p.m.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Yes
4:40 p.m.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Similarly, in the case about discontinuance of government initiatives, you said that:
...the Conservative Party of Canada was not a “person” under the CIA but rather an “unincorporated association”.
Can you just say something more about that decision?
4:40 p.m.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Yes. That was the one discontinuance that we did. That was simply because had we realized, when we got the complaint, that in fact the Conservative Party was not a person, we probably would not have proceeded at all. But we realized after we'd launched the investigation, when we kind of looked at it—because I think some of the other parties are corporate entities. So it was just an odd circumstance.
But technically, it simply was not covered by the terminology of the legislation. And the thing was, when you compare it to other similar provisions elsewhere in the code or the act, they used words like “entity” or something, which would have covered them, but the provision we were trying to interpret said “person”. So I thought, well, if the act says what it says, the one thing I don't do is interpret something on which the act is very clear.
4:40 p.m.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
So even though in the case of a “friend” you had to come up with a definition, you didn't feel that was possible in this circumstance.
4:40 p.m.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
No, because it was defined. “Person” is a defined term. It's an individual or an incorporated body. Yes, the interpretation in the act applies. There was an interpretation of that phrase.
4:40 p.m.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Okay.
Can you just say something on the difference between a partisan political interest and a private interest?
4:40 p.m.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Well, what I can say is that I don't think in the way private interest is defined in the code or used in the act, as now drafted, it was intended to cover.... There is no indication on the face of either of those vehicles that it was intended to cover political activities. My comment was that if members or the House of Commons want them to cover political activities, they can darn well say so directly. It doesn't say that now.
4:40 p.m.
Liberal
Wayne Easter Liberal Malpeque, PE
Thank you, Mr. Chair.
I want to come back to the conflict of interest screens, because to be quite honest, I don't quite understand them. One of your favoured fans, Duff Conacher, in a press release on October 15, representing Democracy Watch, had this to say:
In Democracy Watch's opinion, the Ethics Commissioner has actually violated the Act (section 25(1)) by failing to require public disclosure every time a public office holder removes himself/herself from a decision-making process because of a conflict of interest (the Ethics Commissioner has instead created a secret process that is not mentioned in the Act that she calls “conflict of interest screens” through which office holders secretly remove themselves from decision-making processes).
Now, as I understand it, in your discussions thus far with the chief of staff to the Prime Minister, and kind of what's related to this committee, that individual will be using the conflict of interest screens. That's Democracy Watch's criticism of them.
Can you explain to this committee how they operate in such a way as to refute Mr. Conacher's argument and to clear up the fog for us?
4:45 p.m.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
The very first thing to say is that they are now being made public. I've been making those conflict of interest screens public for the last year, so it is not correct to say that they are secret and not public. All of the conflict of interest screens we've established over the last year have been made public.
They were not being made public as a matter of course before that, and there is a historical reason for that, actually, and it might be helpful for you to understand that. In the previous regime, before I became Conflict of Interest and Ethics Commissioner, there was a code. In that code, recusal was defined as either a recusal or a conflict of interest screen. There was actually a vehicle that was used before this act was put into force. When this act was enacted, they dropped out the concept of conflict of interest screens. It took me a little while, having come into office, to notice, and one day I asked my staff why there were no recusals in our reports. I found out, to my surprise, that indeed what we're now doing had continued, so I said that we had better start making these conflict of interest screens public. They weren't required to be made public, but I have discretion to make public whatever I think ought to be made public.
The whole confusion has come out of the fact that the legislation, the act, changed the terminology and the approach. A lot of people seem to think recusals are anything, but if you look up the legal definition, recusals are things you do at the last minute. You find out that you shouldn't be doing something. A conflict screen is another approach to the same problem.
Anyway, I'm wandering a little bit, but maybe this will help situate you a little bit as to just what happened here. A recusal and a conflict of interest screen are two ways of accomplishing exactly the same thing. One is used when you foresee there is likely to be a problem that's going to come up in the future. The other one is used when you didn't foresee the problem and you have to recuse.
4:45 p.m.
Liberal
Wayne Easter Liberal Malpeque, PE
Let me approach it this way. As I've said in earlier remarks, Hawker Beechcraft, of which Mr. Wright has been a director, is a company that is in direct connection with the $16 billion purchase--or the $9 billion purchase and then maintenance contract--of stealth aircraft. When this issue comes before cabinet, does Mr. Wright have to recuse himself or screen himself out of the whole discussion? How does this work?
To my mind, there are 10 departments in which this individual will have a tough time not being perceived as being in a conflict of interest, so how do you make the decision? If we're talking about defence or maybe Afghanistan, he can be at the cabinet meeting or advise the Prime Minister, but if we're talking about a defence contract on stealth aircraft or some other thing that Hawker Beechcraft or Onex is connected to, how do you make that decision? Explain to me how this works in practicality.
4:45 p.m.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
I can't discuss an individual's private case, but the bottom line is whether or not there is a conflict in this situation. The conflict of interest screen, which you will ultimately see posted publicly, will try to describe those situations that Mr. Wright will have to not take part in. I don't think I can say an awful lot more than that.
Normally the screens establish an administrator, and in practice, the way they work is that whenever something is coming up the line toward somebody who they would normally deal with and it's one of those kinds of things they're not supposed to be involved in, an intermediary stops it and deals with it themselves. If that is what you're looking for, that is practically--
4:50 p.m.
Liberal
Wayne Easter Liberal Malpeque, PE
Is the PMO going to have to hire extra staff to administer these screens?
4:50 p.m.
Liberal
The Chair Liberal Shawn Murphy
No, Wayne, you're out of time. I'm sorry.
He is out of time. He knew that, I think.
Mr. Calandra, go ahead for five minutes.