Information & Ethics Committee on Oct. 26th, 2010

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

In both of your annual reports on the code and the act you talk about working with the House of Commons Standing Committee on Procedure and House Affairs on possible amendments to the code. It's my understanding that you work with that committee on the code but with this committee on the act. Am I correct about that reporting relationship or that working relationship, that division?

[Mary Dawson]

I'm not sure which committee I work with on amendments to the act, to tell you the truth. It may well be this committee, but it could be an ad hoc one, I suppose, if I ever do. I don't know.

But the reason why I work with the procedures committee on amendments to the code is because they have the power to propose amendments to the code and it's much easier to get amendments to a code than to an act.

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

Right.

[Mary Dawson]

The other reason why I work perhaps a little more closely with the procedures committee is because there are rules in the code that require that I can't make guidelines and things like that until they've gone through that committee.

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

You talk about that there might be changes that are necessary--and I think you've mentioned a number of places--to the act. There's the legislative review that happens in 2012 that you mention in your annual report. Is that too long to wait? Are there things that need to be done before that?

I mean you're bumping into--I think regularly--places where things aren't well defined or could be improved. You draw those to our attention, but are there things that you find urgent that need to be addressed before that legislative review?

[Mary Dawson]

No, I don't think we're desperate. I think basically I've made my views known on a number of fronts. I find that the divestment provisions may be a bit broad, but I've made a number of.... But I can wait until they're considered.

On a number of the issues I've taken particular positions, and if people don't like them, they can make the law a little more clear. As I say, I try to be as transparent as I can as to the positions I'm taking. But no, I'm not pushing for reform heavily on the act. It's not a bad thing; there are just a few rough edges.

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

Towards your final paragraph you talk about your frustration with people's judgment of how you do your job and with some of the requirements you're up against in terms of reporting and the public explanations you are able to give or not give. When you were talking with Madam Freeman, you were talking about the balance between principle and rules. Is that one of those places where principles and rules come into conflict, or where more rules might be helpful? Do people expect you to be somebody who's enforcing rules, when in fact you have principles to enforce? It may not be as satisfying to get a judgment on a broad principle as it would be to get one on the breaking of a particular, very specific rule.

[Mary Dawson]

No, I don't think that's the line I'm concerned about. There have just been a few frustrating circumstances when misinformation has been put out and I haven't had the capacity, the authority, to clarify the situation. I've tried to indicate that. You know, it's really a small share. I think, for example, that the investigation process ought to be done in confidence until the report is put out, but I think there's a little bit of room for maybe a little more discretion on what I could make public.

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

Could you say something more about that? It's clearly a frustration and clearly one that, as you know, reflects on how people view the commissioner's office. I wonder if you could say a bit more about how you think that could be clarified.

[Mary Dawson]

One thing that I find really not nice is people who tell the media they've sent me a complaint, and it hasn't arrived at my office and the person complained about doesn't know. I think that's completely unfair. It's that sort of situation. The only person who knows what they're talking about is the person who is talking to the media.

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

How would we fix that? Would there be a requirement to notify the party you're complaining about and to not make a public statement--

[Mary Dawson]

Yes.

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

--until it has been received in the office? How would we structure that?

[Mary Dawson]

I think you could probably structure an amendment quite easily that would make that an offence or something.

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

You've talked in a number of places about the problems of the code and the act and that sometimes both apply, depending on the nature of the position the individual holds. You've talked about trying to harmonize the reports and making an accommodation with that. Are there other ways to harmonize those two that make sense, or are we going to be stuck with that dilemma?

[Mary Dawson]

I was asked about this at the procedures committee. Maybe it was by you.

I don't think we'll ever see the code and the act being the same document, frankly, but there are lots of models one could follow. One could have a portion of one act that applies to members and other portions that apply to different people, but I'm not too concerned about that. My technical problem is really that I keep having to do two reports on virtually the same issue. So I'm not pushing for the same vehicle.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Siksay.

Mr. Poilievre, you have seven minutes.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Thank you.

Paragraphs 3(d) and (e) of the act, under “Purpose of the Act”, read as follows:

(d) encourage experienced and competent persons to seek and accept public office; and

(e) facilitate interchange between the private and public sector.

Some of the nature of the questioning on Mr. Wright's imminent arrival in the role of chief of staff to the Prime Minister would almost seem to suggest that some don't want to experience the interchange between the private and public sector and that successful private sector Canadians should, by that same flawed logic, be excluded by the rules.

Could you comment on the spirit of the act with respect to inviting experienced and successful private sector Canadians to play a role in the political process?

[Mary Dawson]

I commented myself, I think, in the first year I was in office that paragraphs 3(d) and (e), which talk about encouraging experienced and competent persons, is to be noticed. There is a balance to be struck. The observation I would make is that there's nothing else, pretty well, on the face of this entire act that supports those two principles. That isn't to say that they're not important principles. It's kind of in that context that I've made comments in the past, questioning whether our divestment provisions are too stringent, and that sort of thing. But I have taken note of paragraphs 3(d) and (e), and I agree that it's right there on the face of the act, and it's one of the balancing considerations when one appoints people to be public office holders.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

So you believe that the Conflict of Interest Act divestment provisions may be too stringent.

[Mary Dawson]

Yes. There is no conflict of interest test for the holdings; it's certain types of holdings that have to be divested. Of course, it's ultimately at the expense of the public purse. People have the right to have a trustee who can divest either by selling or by putting it into trust, and when they put it into trust, the public purse pays for that. I'm not sure it's always necessary to do that.

Anyway, that's an example of where you get a signal from the act that maybe they're not so encouraging towards outside people.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Okay. That concludes my questioning, but I'd like to defer any time I have to Ms. Davidson.

[The Chair, Liberal, Shawn Murphy]

Four minutes.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thanks very much, Mr. Chair.

Commissioner, thanks again for being with us. Certainly it's always a pleasure to hear you and to have you present your report.

I want to go back to a couple of things you referred to in your opening remarks. The one statement that really caught my attention was where you were talking about imposing penalties in five cases. However, you noted that the act does not provide for penalties for contraventions as substantive provisions of the act.

Could you elaborate a bit more on that, and could you please tell me what, if anything, you think needs to be changed?

[Mary Dawson]

I'm not sure whether there should be a change or not, but it's quite odd that the only thing there's a penalty for in the act is for a failure to meet a deadline. There's not a penalty for being a director in something you shouldn't have been a director in after you become a public office holder, for example. The only sanction we could impose in that situation would be if there were a failure to tell us they were a director. It's not exactly the sort of thing you'd normally do an investigation on; it's a technical requirement.

There's a middle area of contraventions that are not clearly covered by the act. It's a bit odd that the only thing I can impose a penalty on is what one might see as the most minimal of contraventions, which is a failure to meet a time delay.

That's my comment: with that substantive failure to comply, it's simply not appropriate to take the time and expense to have an investigation when it's obvious it's an infraction. Of course, even with an investigation I can report and recommend, if I want. But the only sanctions that exist on the face of the act are these penalties for failure to meet deadlines. It's a bit unusual.

On the other hand, you could argue that it's not the place of a conflict act or code to be focusing on penalties; it's more about setting the rules that people should be meeting. I'm not necessarily advocating massive fines. I'm saying it's a bit odd.