Evidence of meeting #52 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 rcmp.
A recording is available from Parliament.
Commissioner of Lobbying, Office of the Commissioner of Lobbying
If you take A40, where it says “The file was suspended for two years while with the RCMP”....
Commissioner of Lobbying, Office of the Commissioner of Lobbying
If you take A6, “Founded, and referred to the RCMP. RCMP advised that they would not proceed on the basis that there was insufficient evidence that events occurred", that's the Bruce Rawson report that I just tabled.
In a lot of cases, there is insufficient evidence. There are a few—they're in the pie chart as well—where the reason is the time limitation. The previous act had a two-year time limitation. It was extended under the Lobbying Act, but that affected their ability to look into things and to lay criminal charges.
Bruce Bergen Senior Counsel, Office of the Commissioner of Lobbying
In addition, part of this issue really boils down to a very simple difference. The commissioner's duty to refer a matter to the RCMP arises when she has reasonable grounds to believe that there may have been an offence under the Lobbying Act or any other law. Then the RCMP will conduct their investigation and consult with their legal counsel. In essence, they look at whether they can prove all elements of the offence beyond a reasonable doubt, in a court of law, which is a higher standard of proof. That is the way the system works.
That explains the discrepancy, in my mind anyway, between the number of cases referred to the RCMP and then, months later, the RCMP in consultation with the prosecutors decide that no, they are not going to be laying charges in this case because they don't believe there is a reasonable probability of conviction.
Liberal
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
Thank you very much, Mr. Chair.
Thank you to you and your colleagues for being with us again today. Certainly this is an interesting subject. I know we've had some conversation on it in the past, but I think it's good that we are starting this review.
There's already been a question alluding to this today, and there's been some discussion on whether or not to require the designated public office holders to proactively record and disclose their contacts with lobbyists. What's your position on that?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
The act has always placed the onus and the responsibility to comply on the lobbyist, who actually is usually the beneficiary of the lobbying activity. Changing it to the public office holder's responsibility, depending on how it's done, could change the focus of the act. I think that's the consideration. They then become responsible for having to determine whether or not that person should be registered.
If we keep the current regime the way it is, then we'd be asking public office holders to determine if they have hit the significant amount of duties test, for example. The issue then would be asking them if they are paid or unpaid, coming into the legislation, as opposed to it being with the lobbyist. It becomes a different focus of the act.
I think that's where I'd be saying to Parliament, “Is that where we want to go with the focus?” The other question I would have for Parliament is whether we are then putting the onus on the public office holder, or whether we are going to be having the public office holder and the lobbyist responsible for reporting meetings.
From an administrative point of view, I can see an enormous amount of problems. As well, are they reporting to me as a public office holder? Right now, with the registration system, the monthly communication report is tied to the registration. They have the one number, and it specifically links to the registrations. Having the responsibility with a designated public office holder is then....
From a systems point of view, how do I tie that to a registration? If I take any one of you, or the ADM of industry, who'd be meeting with several individuals, it would be a nice challenge trying to tie that to the registrations.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
It probably works better the way it's set up right now, then.
Commissioner of Lobbying, Office of the Commissioner of Lobbying
I think so, yes.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
Okay.
Can you talk a little bit more about your ideas on administrative sanctions? Perhaps you can relate them back to some of what your other colleagues may have in place.
Commissioner of Lobbying, Office of the Commissioner of Lobbying
Sure.
To go back a bit, right now the only sanction under the act is to refer something to the Royal Canadian Mounted Police. For lesser transgressions, such as late filings, it doesn't make sense, so I've been educating and monitoring.
But when we're looking at a regime--
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
That's been the process--excuse me--up to this point, the education?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
I've started doing that with some of the files. When you look at the sheet in front of you....
There was a case where, under the previous registrar, we had reasonable grounds. The individual hadn't registered. They actually registered during the process of the review. It went over to investigations. If I'd had, or the registrar had had, the ability to issue a monetary penalty, the individual probably would have been fined.
I would like the capacity, clearly, to post their names on the website. Part of having the website and putting up the names is that it shows there are consequences. There is general deterrence.
So I don't think everything warrants going to the RCMP, even if the decision by Parliament is to keep it a criminal infraction.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
You talked a little bit about your counterpart in Alberta with the $25,000 and $100,00 penalties. Do you think those are reasonable?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
I think they are. When I look at where the lobbying....
Commissioner of Lobbying, Office of the Commissioner of Lobbying
Sorry; up to.
Thank you for that.
It depends on the level. If it's of interest to the committee, I'd be pleased to forward the provisions from that particular act. There are details not only in the act but also in the regulations that I think would be quite useful.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
I think it would be good. Perhaps you could forward that to the clerk.
Commissioner of Lobbying, Office of the Commissioner of Lobbying
I will do that. It shows what the different measures and thoughts should be in giving this. I think a $100,000 fine is fairly substantial when I actually look at the current legislation and if it went as a criminal infraction. I mean, we're talking the same kinds of funds, except I would have control, as opposed to having to refer it to another body.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
The other thing that struck me when you were giving your opening remarks was the immunity provision. Could you elaborate on that, please?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
Sure.
Interestingly, in looking at it, I'm actually the only agent of Parliament right now who doesn't have it in his or her legislation, in terms of my colleagues, but it's just the ability to speak about a file in Parliament or as part of the case. I think Madame Freeman was sort asking if I could talk a little bit more freely. I think there would be a lot more comfort, too, in speaking if the immunity clause were in the legislation, as it is for the Auditor General, for example.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
Okay. And is that common in the other officers of Parliament, as well?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
They have similar degrees of it, yes. I believe in my five-year review there's an attachment with those at the end.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
Okay.
When you talked a bit in your opening remarks, you said you'd sent six files to the RCMP, tabled three in Parliament, and “three additional reports have been sent to individuals to provide them with an opportunity to present their views as required under the act”. Who did they present their views to? What's required?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
I just want to be clear with the numbers. I've referred six files to the RCMP. I've recently tabled three. Two of those were code of conduct investigations, so those two would never have gone to the Royal Canadian Mounted Police. I just wanted to make sure that's clear.
In terms of opportunity to present views, the opportunity to present views is with me. And that is actually in the act. In the process that I've put in place to ensure the subjects have sufficient opportunity to present their views, I actually send them the report that I receive from the investigations directorate. They are given 30 days to review the report, and when requested to—one I've just had recently—I grant exemptions if they feel they need more time. And then I'm responsible for tabling a report to Parliament on my facts, findings, and conclusions.
From the three reports that I tabled, specifically in McSweeney and Stewart, you can see where they reacted to specific sections and arguments in the report, and I reflect that in the report on investigation I tabled to Parliament.
