Information & Ethics Committee on Dec. 14th, 2010

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

Thank you, Chair.

Thank you for being here again, Commissioner, with your colleagues.

I want to look at this sheet about RCMP referrals and get a bit more information about what's here, and particularly about the referrals that have been returned to your office.

It is my understanding that even though they've been returned there are two categories: “returned after consultation with the crown” and “returned by the RCMP for other reasons”. Is it still possible for you to take action on those files, even though they've come back from either the federal crown or the RCMP?

[Karen Shepherd]

I can continue—as I indicated in my opening remarks—to examine whether I still have reasonable grounds to believe that a breach of the code has occurred. Then I can continue with the investigation once the matter has been dealt with.

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

Are any of those five cases still open? Are you still pursuing those five cases?

[Karen Shepherd]

Yes. There are four of them.

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

Do you have a timeline on when we might expect something from your office on those cases, given that the RCMP and the crown have decided they're not going to pursue them?

[Karen Shepherd]

I've had a number of cases on the books, and I can come back on those particular ones. In speaking with my director of investigations and looking at our timelines and what we need to do on some of the files, I hope to table three files some time in February when the House is back; a couple in the spring; and then—I'd like some advice from the committee on this--probably a couple in the summer, depending on when the House recesses for the summer.

Investigative reports are important enough that back-door tabling them, which is always an option during the summer months, would not be advisable, and I should hold them until the fall. So if I can get some advice from the committee that would be useful.

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

Okay.

Now with regard to the three referrals returned from the crown, they were there for two years. Is that right? Is there some automatic process whereby they come back after that length of time?

[Karen Shepherd]

Could you say that again? I'm sorry, they're referred--

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

You said there were three referrals returned after consultation with the federal crown to your time limitation.

[Karen Shepherd]

It's not because they were with the RCMP for two years. When the Lobbying Act came into force, the period of time within which a matter could be investigated and charges could be laid was extended. Previously everything had to be done in two years. So you can imagine my office looking into it, reviewing it, sending it over to the Royal Canadian Mounted Police, and then they would do their own fact-finding before they would....

So for a couple of the cases we had on file, because when they occurred there was, I guess, a question in terms of a legal point--and I can ask Bruce if he wants to interject--we looked at them and determined that because the act had extended the time limitation to five years, they actually fell within the time limit for prosecution.

But in discussions between the RCMP and the prosecutor's office, there was some concern, as I understand it, that they might lose on that technicality.

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

Okay.

[Bruce Bergen, Senior Counsel, Office of the Commissioner of Lobbying]

That's it, in a nutshell. A legal issue would arise because of the change in the limitation period, and the prosecutors weren't convinced that was necessarily the best way to go to have that. That would be the first issue addressed.

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

For the two that were returned by the RCMP for other reasons, has your office done any analysis of them? Do you see a shortcoming in your investigations process? Because you say here that the “subject-matter did not lend itself to a strong likelihood of conviction” or that there was “insufficient evidence”.

Have you done any analysis within your office to see if there is a systemic problem there? Or is it very specific to those two cases?

[Karen Shepherd]

I'd say it's very specific to their cases. It's one of those things for which, when we're sending something over, we really do spend a lot of time trying to make sure the file is complete and comprehensive. In one case we had determined that the individual had registered, and one of the reasons people register is that they are paid. Then they looked at the file. They were having difficulty, but we are continuing with the file.

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

Okay.

On page four of your opening statement you talked about the 16 files for administrative review that you have closed since July 2008 but said that some of those are subject to further monitoring. Can you tell us what is involved in the further monitoring that your office does?

[Karen Shepherd]

For example, we'll keep an eye out for other allegations arising in the media and for other things that come in on the registration side.

I can actually say that in one file where it is noted that the registration provided accurate information, there was a question. When we looked at it, the individual had properly registered as a consultant lobbyist, but there was some question as to whether they were an in-house lobbyist or not. Because they were properly registered, I closed the file, and gave them what we call an “education” to sort of beware. The individual performed the same function again with the same government institution, so instead of doing the administrative review, which is my normal process ramping up to an investigation, I instructed the director of investigation to actually open an investigation right away. That's why when we are keeping an eye out, there is a bit of a ramping-up process.

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

On page 7 you mention “habitual late filings”. Are there many habitual late filers, or are you tracking many people who fall into that kind of category?

[Karen Shepherd]

Well, that's one of the things we've been putting in place. It's an interesting phenomenon that we're starting to have those who are coming forward and voluntarily disclosing. So I've been putting a continuum in place, but between my director of registration client services and my director of investigations, we are keeping an eye to see whether this is a recurring problem with some individuals.

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

Also on page 7 you mention this alternative dispute resolution process. Does writing an essay meet your standard of what needs to be done when somebody is found in violation of the act?

[Karen Shepherd]

It's a good question. When someone breaches the act, I would like to see something a little bit more severe than an essay.

Go ahead.

[Bruce Bergen]

If I can say a few words, in that case it was quite a unique case because it involved an individual who was under investigation for breach of both the federal Lobbyists Registration Act and the provincial Lobbyists Registration Act, so there were two prosecutors involved and two very similar pieces of legislation. And in fact under the provincial Lobbyists Registration Act, the prosecution did proceed, and in the end there was an absolute discharge for the individual. But there were some unusual circumstances in that case.

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

Thank you.

[The Chair, Liberal, Shawn Murphy]

Thank you, Mr. Siksay.

Mr. Poilievre, you have seven minutes.

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

I'm interested in the compliance costs the regime has imposed upon non-profits. Could you share with us any information you might have on the experience that non-profits have had in following the rules instituted under the Federal Accountability Act? We've had a fair number. Your provisions came into effect about four years ago, so we should have a record to review. What are your thoughts?

[Karen Shepherd]

For the lobbying, that came into force into July 2008, so it's been a couple of years.

As to the costs, what I've heard is more anecdotal evidence—non-profits deciding to look at whether they're hitting the “significant amount of duties” test. Some have determined not to register. These are firms that might have registered if they felt they were hitting 15%. Re-looking at it, they're choosing not to register, because of the burden. If they don't need to register an initial registration, then they don't have to file monthly communication reports.