Information & Ethics Committee on March 23rd, 2011

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Ms. Dawson wasn't necessarily talking about discussing the details of an investigation. She was simply saying that she would like to have more freedom to talk about the cases she was working on.

But, still, you've answered my question.

What do you think about subsection 4(2) of the Lobbying Act, which allows for "any oral or written submission made to a committee of the Senate", or to other parliamentary committees? Should it be repealed or amended? Because that subsection allows anyone to lobby in private with regard to the application of federal acts and regulations.

I would like your opinion on that section of the act.

[Karen Shepherd]

I'll answer first, then perhaps Bruce will add something.

I think that the purpose of the act is to ensure transparency. When someone testifies before a committee, that information is already public; it is possible to read all the testimonies in the minutes. So, I don't think that this subsection of the act needs to be amended. I would leave it as is.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

You also said that, as far as penalties were concerned, they were fairly minimal and that, ultimately, there are very few penalties for lobbyists who don't comply with the act.

Can you clarify your thinking about this and tell us what penalties you would prefer?

[Karen Shepherd]

Perhaps I didn't express myself clearly.

If I have reasonable grounds to believe that there has been an offence under the act, I must turn to the RCMP. As far as administrative penalties set out in the act, it is up to the RCMP and the Office of the Prosecutor to decide to bring the case before the court, and the criminal court is there to determine the penalty.

But I would like to have the ability to impose penalties myself, at my discretion. As I mentioned, there are different regimes. Parliament could decide that it isn't necessary to refer all cases to the RCMP. It might be a good idea to give the commissioner the possibility of imposing penalties up to a maximum of $25,000.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

You would like disciplinary measures that are much more rigorous and much more severe.

I would like to know something else. Are lobbyists required to disclose how much they spend on their lobbying activities?

[Karen Shepherd]

Not under the current act, no.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Do you think this is right, or do you think it should be discussed?

[Karen Shepherd]

That's a good question. When amendments were made to the act in 1996, I think it was, and in 2005, this issue was discussed a number of times. Frankly, I don't know how this would enhance the principle of transparency. The money paid to a lobbyist doesn't indicate whether the lobbying has had an impact. Is a lobbyist successful because he has been paid more than another one? I don't think so.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

No, I'm talking about what the lobbyist spends to lobby, what he spends on attending his meetings and all that. So, you don't think that this is important necessarily.

[Karen Shepherd]

The analysis doesn't indicate whether the lobbying has been successful or not. I don't think that this has an impact on the application of the act. It doesn't increase the transparency of the lobbying activities.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Thank you, Mrs. Shepherd.

[The Chair, Liberal, Shawn Murphy]

Thank you, Mrs. Freeman.

Mr. Siksay, seven minutes.

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

Thank you, Chair.

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

Commissioner, just to follow up on Madame Freeman's point, do you know of any jurisdiction that does require the disclosure of the amount spent on lobbying? Is that part of the regulations in any other jurisdiction you're aware of?

[Karen Shepherd]

The only jurisdiction I'm aware of is in the United States. To be honest, I think it makes more sense there than here because of their campaign and election laws. It's a different focus.

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

Right.

I want to go back to some of the points you made in your statement today. You said that some amendments to the act might help capture a greater share of lobbying activities. Have you done an analysis about what percentage we capture now and what percentage is unreported, secret, or goes on under the radar?

[Karen Shepherd]

I don't have any solid stats.

When it comes to some of the oral and arranged meetings, just from what I get from doing the outreach activities, there are meetings that aren't being captured because of the question of what is arranged, or meetings that are initiated by a designated public office holder. Unless they are about a financial benefit, they do not need to be reported. I have had some say that maybe they'll call the individual in. That's what concerns me when I look at transparency.

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

You don't have any sense of--

[Karen Shepherd]

I don't have any numbers, no.

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

In terms of removing the “significant part of duties” threshold, you also have said that it might be good to take that out and replace it with a limited set of exemptions. Could you suggest what those kinds of exemptions might be, or what would be appropriate, or what other jurisdictions have done when they've looked at the question of exemptions?

[Karen Shepherd]

Right now in Canada, the one jurisdiction that has gotten rid of the “significant part of duties” time is the city of Toronto. They have an incredible list, though, of exemptions.

What I'm saying by “limited” is if you make the list too extensive, then that becomes problematic as well. When Parliament first put in a “significant part of the duties” test, it was probably recognized that there are certain organizations or corporations that might be coming in once a year. When you think of the fourth principle of the legislation, it is that you shouldn't have a system that prevents this natural activity from occurring.

Some good examples could be the non-profit charities. When I'm looking at exemptions, if you were to remove it totally, some of the charities might be.... I don't want to say they're in danger of losing their exemptions or their status with Canada Revenue Agency, because they're not allowed to use funds for lobbying purposes, which might be one of the reasons why the 20% rule was put in.

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

Okay.

You mentioned earlier an enforcement mechanism, an administrative penalty mechanism for criminal charges. You mentioned Alberta as a jurisdiction that had that possibility. Is that a good model for administrative monetary penalties? Are there other jurisdictions that you think might provide an example of what that regime would look like for us?

[Karen Shepherd]

There are two regimes. Other provinces have fines and jail terms in their acts, but they have to go to another body. The two in Canada that have the ability to administer it themselves are British Columbia and Alberta. I believe British Columbia representatives will be coming next week, so they could explain it further.

They are relatively new, I believe, in both jurisdictions. I don't think either of them, to date, have issued penalties, but in looking at the schemes…. I was talking to my colleague from Alberta about the education of the mandate. He has the ability to issue penalties, and it's almost like the first tranche around. If he's explaining a new act, he's saying okay, the first pass, but there's a warning for the next time around.

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

You mentioned that the RCMP haven't acted on any of the files you have sent to them, and haven't pressed charges in any of those cases. I suspect you can't discuss the details of those cases, but have you done any analysis of why those decisions not to proceed were made? Is there anything common to those, that's a flaw in the legislation? Is there anything you can offer on why those haven't proceeded—after you apparently believed that they were worth referring on, in terms of a criminal investigation?

[Karen Shepherd]

We can refer to the handout. I gave a list of the ongoing cases. In the comment section, I put the reasons why the RCMP has been returning the files.

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

Could you maybe just point out a couple of those to me? I haven't looked at the chart before.