Information & Ethics Committee on Dec. 13th, 2011

[Scott Andrews, Liberal, Avalon, NL]

Thank you, Madam Chair.

Thank you, Commissioner, and I want to thank your officials for coming in last week to give us a technical briefing. It helped.

I'm going to go on sort of the same line as my other two colleagues, talking about the 20% and how much stuff is actually flying under the radar. People are actually doing lobbying but don't think they're doing it. How do you catch that? The only reason you would catch anything is if someone reported it to you or they saw something. It's hard for you to investigate when you don't know what's going on.

Do you see that as an issue in terms of how much of this is actually flying under the radar, that people are saying no, I'm not really a lobbyist, and really they are? Could you comment on that, and is there some concern around that?

[Karen Shepherd]

It's true that things get brought to my attention in terms of complaints, but we also do what I call media monitoring and we keep an eye on what's going on. If we see something, we send out what I call an advisory letter to bring things to somebody's attention, and we ask them to get back to us.

I'm also spending time, as I mentioned, educating public office holders because—and there was a comment—it takes two, right? If the public office holder understands what lobbying is about, that is another way to help with the compliance measure.

[Scott Andrews, Liberal, Avalon, NL]

That's where I was going to go, because the onus in all lobbying is on the lobbyists themselves. I know we've asked questions about whether there should be a reverse onus on the public office holders. I know when the Conservatives promised open accountability, they promised that ministers would report who they were meeting with, and that hasn't happened.

Would it be helpful to have ministers and certain levels of office holders do some reporting to you as well, so that you could see who's meeting with who, and if something is missing you would see that, and you could cross-reference? If both parties knew they were being reported, they would be more open to telling and be more upfront about their meetings, because if one party reported it and one party didn't, then that would raise a red flag. So it's opening up a whole new area of onus. Should we be moving the onus to both parties?

[Karen Shepherd]

Well, in terms of the onus, you're right, it's on the lobbyist. There's no responsibility on the public office holder. Having them report to me is an interesting question in terms of mandate. It changes the mandate of the act in terms of placing it on the public office holder. Having, as you say, both coming in would be problematic, first in tying it to a registration. Right now, the monthly communication reports that the lobbyist files are tied to a registration. Having the monthly communication report come in from the public office holder, who may have several meetings, would be quite the administrative challenge in trying to match that with the registration.

[Scott Andrews, Liberal, Avalon, NL]

But is there worth in doing that? Then you would actually find out where there were gaps in perceived lobbying. I know it's outside of the act right now. We're reviewing the act, so should we review the act to include that?

[Karen Shepherd]

I'm not sure how much more would be gained by putting all of the onus on the public office holder.

[Scott Andrews, Liberal, Avalon, NL]

No, put the onus on both parties, because if one party knew that the other party might report them, they would be more apt to report more of their activities, and then you would be able to cross-reference the two.

[Karen Shepherd]

This is where I've been spending the focus on the education, because I'm trying to get at that with the public office holder, so they understand those who are coming to see them—

[Scott Andrews, Liberal, Avalon, NL]

You can educate public office holders as much as you want, and that is good as well. You can educate, but if there's no actual onus on them to report who they're meeting with, then things will fly under the radar.

[Karen Shepherd]

When we're doing our verifications, we're actually reading the letters now as well to try to capture some of those additional meetings. There are public office holders who don't want to find themselves, like yesterday, in reports where they have met with unregistered lobbyists.

Those reports not only act as a deterrent to lobbyists, but they serve to educate the public office holders as well in terms of the consequences of meeting with unregistered lobbyists.

[Scott Andrews, Liberal, Avalon, NL]

Would it help you if ministers submitted a list to you of who they have met with?

[Karen Shepherd]

In terms of the staff I have now, to be honest with you, I would be looking at the addition of resources. That would be quite an amount of work in terms of trying to match that up with the registrations.

[Scott Andrews, Liberal, Avalon, NL]

Would the work be worth the reward of tightening it up, so we don't have these things? We talk about penalties, and there is no penalty on this at all. It's just a slap on the wrist and public embarrassment and perception. I think there's an area here, and I don't know if you'd like to explore it.

[Karen Shepherd]

I guess the question is, if we do that, where does it stop? With the public office holders I would ask Parliament, because the public office holder doesn't just mean ministers; it's everyone in the bureaucracy. So it's quite a lot.

I'm not sure, for the percentage I would capture, that it would be worth all of the resources and the time and effort.

I mean, most lobbyists do want to comply with the Lobbying Act and the lobbyists' code of conduct.

[Scott Andrews, Liberal, Avalon, NL]

Most do, but we're looking for the ones who are rogue.

Obviously, Mr. Jaffer and his partner felt they were above this. I'm just curious about that—that's all. I think there might be something there.

Let me ask another question. I know I asked your colleague in our briefing about a lobbyist as a lobbyist, a government relations firm versus another lobbying firm—

[The Chair, NDP, Jean Crowder]

Excuse me, Mr. Andrews. It's just to remind you that the briefing was in camera, so we cannot refer to the in camera parts of the meeting.

You can ask a broad general question without reference to the in camera meeting.

[Scott Andrews, Liberal, Avalon, NL]

Okay. My apologies. Sorry.

No matter what the activity is, whether it's a lobbyist or—

[The Chair, NDP, Jean Crowder]

I'll allow you a brief question on this.

[Scott Andrews, Liberal, Avalon, NL]

Do we need to look beyond just the lobbying firms to the government relations firms and other firms that do government relations work with lobbyists?

Is there anything we can do to tighten that up as well?

[Karen Shepherd]

Well, with government relations firms, lobbying firms, legal offices—I mean, even with the report I tabled yesterday—it's not the firm or what its occupation is. When they start communicating with the government on registrable activities, they need to register.

A government relations firm could be, as I understand it, doing quite a lot of different things in terms of strategic advice and so on that isn't lobbying. Lawyers who provide legal counsel are not lobbyists until they perform registrable activity under payment.

[The Chair, NDP, Jean Crowder]

Thank you, Mr. Andrews.

Mr. Carmichael.

[John Carmichael, Conservative, Don Valley West, ON]

Thank you, Madam Chair.

Good morning, Commissioner.

I appreciate your comments. You noted previously that the bulk of the lobbyists today generally want to comply with the regulation, want to play by the rules. Clearly, we're trying to find a way to deal with those who, as you say, fly below the radar or willingly flaunt the law and work to circumvent it.

When you talk about the monetary penalties—and we want to avoid the Sister Frances Margaret penalties here as well—you mention the fact that you've had some serious difficulties with the existing remedies that are available to you. I'm wondering if you could quantify that for us.

When you talk about those who you take to education or those you meet privately with, where they have in fact disregarded or unknowingly circumvented the rules and the laws as they exist, what would the monetary penalty be? How many infractions—I'm looking for a ballpark figure here—would you have captured as a rule, if these rules were available to you, as you suggest? Is it significant?

[Karen Shepherd]

Where I would like to go with the administrative monetary penalties is to look at perhaps two things, and I don't have all the numbers with me.

The first one might be an automatic thing for those who file late communication reports, for example, where it's almost like a library charge, where you charge something up to a certain amount and their names would be posted. If I looked at the six reports that I filed with unregistered lobbying, those are clear examples where I might have used monetary penalties rather than referring them to the RCMP. It would be someone who had forgotten, for example, to register when they arranged meetings, which is a registrable activity for a consultant lobbyist. For the two where I found them to be in breach of the lobbyists' code of conduct, that would be something that I can't send to the RCMP, but if I had monetary penalties, I could have issued something there as well.

In terms of talking about the 30, some of those were voluntary disclosures, late filings. As I mentioned in my opening remarks, these lesser transgressions are things that don't warrant going to the RCMP. Those would be examples of where I would have used monetary penalties. One of the things with the B.C. model—it's not in the legislation, but they came up with principles and criteria—is that there's a range of different options depending on the type of transgression and whether this is a first offence or a second offence.

[John Carmichael, Conservative, Don Valley West, ON]

Are those publicly available? Do we know how many infractions have been actually charged on that basis?

[Karen Shepherd]

Alberta has it as well. Neither province, to date, has charged.... Alberta has just finished their legislative review of the act. For B.C., it was quite new for them in terms of a lot of the changes to the act. What they did a lot this year was to educate people the first time around. To date, they have not used the penalties yet.