Information & Ethics Committee on Dec. 13th, 2011

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

That's interesting. Certainly when you talk about the DPOH—the designated public office holder—component, and how we bring them into the loop on this and whether they should be registering or providing a register of everybody who visits, it sounds to me like the bulk of lobbyists and office holders all want to play by the rules. It's the exception we're trying to catch here. The concern I have is that we certainly have to put penalties or some sorts of remedies in place that ensure we capture those who truly flaunt the law and flagrantly disregard it. My concern is that we not put in another layer of bureaucracy that in fact buries your office, buries every office holder's office, and does it in the interest of the honest ones to capture those few. Obviously, we want to ensure that the rules are played by.

With that, this act was included in our government's Federal Accountability Act to prevent certain types of behaviour that could be offensive or considered offensive to our democracy. I wonder if you could just outline for the committee the types of activities the Lobbying Act is trying to prevent specifically? Could you go a little deeper on that? Can you offer your opinion on whether we're achieving that outcome?

[Karen Shepherd]

It's the types of activities to ensure that lobbying is properly registered for the different communications, whether it's the making or developing of a policy or program. The monthly communication reports, as I understand, were to get at the number of meetings that were happening with these designated public office holders, so that the public would know who was actually meeting with the decision-makers. This is why I was suggesting a couple of changes there. You don't see who actually attends the meetings, for example. That's something that could be changed easily through regulation.

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

You're only seeing the registered lobbyists.

[Karen Shepherd]

You see the person responsible for reporting, which I would still keep because I think there should be a notice on the reporting officer. But in terms of transparency, it would be listing all of those. That's what the act was trying to get at.

I say this to public office holders as well. Lobbying is legitimate. As decision-makers, you want access to the best advice out there. It just needs to be transparent. Having the name go into a monthly communication report shows you're doing your job. But as some of them say, with the current rules they may be meeting all sides of an issue, but you don't see it because those who are not hitting the significant amount of duties test do not file what we call the initial registration, which has all of the comprehensive detail in it. Therefore, since they do not file that, they do not file a monthly report. That's where I'm saying the act could be strengthened.

At the same time, as I mentioned in my paper, there need to be some exemptions to that. I don't think you want to put the chill in that citizens don't want to see their members of Parliament or the small organizations that might meet with you once a year. This is where it really does need some thought. There are a lot of organizations that are doing enough lobbying that you'd want to capture them.

[The Chair, NDP, Jean Crowder]

Your time is up, Mr. Carmichael. Thank you.

We'll now move to the five-minute round. The first speaker is Monsieur Boulerice.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Thank you very much, Madam Chair. Thank you, Commissioner, for being with us this morning. We appreciate it.

I will start by saying that your report, which came out yesterday, was quite telling. Some people were concerned and were wondering what happens to defeated Conservative members of Parliament or candidates that are not appointed to the Senate or to UNESCO. Now we find out that they can become non-registered—in other words, illegal—lobbyists on Parliament Hill. Two were caught yesterday and there are others. We're looking forward to the investigations into Mr. Bruce Carson who was a lobbyist and the Prime Minister's advisor. We're waiting to hear more about that.

Allow me to mention Mr. Rahim Jaffer, who was a member of Parliament, and Mr. Patrick Glémaud, who was a Conservative candidate in 2008 for Ottawa-Centre, I believe. We know that these individuals were familiar with the law. Mr. Jaffer could not have been unaware of it. We know this for certain. Yet they still attempted to influence senior civil servants in order to obtain contracts worth $178 million, knowing full well that, if they were caught, there would really be no consequences. You have stated as much and you have made recommendations that are a move in the right direction: the act has no teeth and does not provide for particularly serious penalties. So, in that case, why not try? If the field is wide open, then why not attempt to influence decision-makers and obtain contracts, even though one doesn't have the right to do so?

I have children. When they are told not to do something, and they do it anyway and there are no consequences, there is generally no incentive to listen and obey the rules. In fact, grade schools refer to “consequences”. That is the term they use when they are punished.

How can we put more teeth into the act? You stated that you would like to see monetary penalties. You referred earlier to penalties of up to $25,000. Would that be enough? Would that be enough depending on the seriousness of the case? Would it be an idea to ban someone from being a lobbyist? Would it be an idea to order community service? What kinds of tools could be used to prevent these kinds of illegal activities?

[Karen Shepherd]

Yes, in fact there are no consequences like monetary penalties or prison sentences. I feel that administrative penalties could be useful in similar situations. My reason for asking about the $25,000 figure is that penalties have to be corrective—as opposed to punitive—if you want to change someone's behaviour. If our measures are punitive, we will be getting into criminal matters that would be referred to the RCMP.

In terms of preventing someone from lobbying, that is not in my jurisdiction, unless an individual is—

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

—found guilty.

[Karen Shepherd]

When individuals are engaged in lobbying without intending to communicate with public office holders, that prohibition does nothing. So monetary penalties are used. However, I think that in situations that fall under the Lobbyists' Code of Conduct, if there is a breach, then perhaps it would be appropriate to use a prohibition. Take, for example, the McSweeny and Stewart case that I tabled before Parliament. That could be an example of that kind of situation.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

If the RCMP has never been able to find anything on anyone, if it found nothing on Rahim Jaffer, one can only wonder how to describe the RCMP's work. How would you describe it? It is as if they can never find anything, however clear the facts are.

[Karen Shepherd]

That is what I stated in the report that came out yesterday. They told me that they were [Inaudible—Editor] an investigation. That is why I strongly urge the committee to invite the RCMP to come and speak about the review of the act.

[The Chair, NDP, Jean Crowder]

Thank you, Monsieur Boulerice.

I have a note of information for the committee. On Mr. Carmichael's question, I failed to mention that the commissioner from British Columbia is confirmed to appear before the committee and will probably be able to answer some of those questions more directly. The commissioner has tabled a number of reports now, and the committee at some point may wish to ask the commissioner to come back to deal with some of those lobbying reports that have been tabled in Parliament.

Mr. Butt.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Thank you, Madam Chair, and my thanks to the commissioner for being here. I appreciate it.

I'm looking forward to this review, as a new member of Parliament. I agree with you that lobbying is part of what goes on. It's legitimate advocacy. I know many of the groups I meet with, and I know they register those meetings. I appreciate meeting with them, and as a parliamentarian I appreciate looking at issues in a different way. Part of our responsibility as public office holders is to do that.

Unions are required to register if they're lobbying. Is that correct?

[Karen Shepherd]

If they are lobbying, yes. The other test for them is hitting that threshold, the test for a significant part of their duties.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

So if a union sponsors a convention, as we know the unions did with the NDP convention in June, and I would assume that union members are attending that convention for the whole weekend and interacting with public office holders, are they required to register those meetings, those discussions? Maybe they're making a presentation in one of the learning sessions that take place in these conventions. If they're there for an entire weekend and meeting with a whole bunch of public office holders, that would be considered lobbying and would have to be registered, would it not?

[Karen Shepherd]

The act has two things on whether an initial registration needs to be filed. But they also need to be communicating on registerable subject matters. This is the whole thing with oral communications and the actual nature of chance encounters at a convention.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Do you feel the current act has enough disclosure requirements on interaction for members of political parties attending events? There could be registered lobbyists that are delegates to conventions, where there's some sponsorship, as in the case of the NDP, or some other involvement such as the hosting of a hospitality suite. Is the Lobbying Act strong enough right now to make sure that we're getting proper disclosure on those kinds of encounters with public office holders?

[Karen Shepherd]

Prior to the changes made in September 2010, members of Parliament were not considered designated public office holders. While initial registration had to be there, those encounters didn't necessarily have to be reported, unless the member was a designated public office holder. Prior to September 2010, it affected only ministers and their staff.

The advice changed with lobbyists and public office holders. Now, if you go to a lobby day, you're basically agreeing that you may be lobbied at that event. You may end up communicating with someone, but it's not about a registrable activity. You would not need to register that encounter.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

I know you've made some recommendations for possible improvements to the act. Are there other jurisdictions that you've looked at, either around the world or within Canada? I know there are some provinces that have lobbyist registration systems. There are a few municipalities that have these systems as well. Do any of those jurisdictions have best practices that you think would improve or strengthen the federal Lobbying Act?

[Karen Shepherd]

Yes. I look at what my colleagues have at their disposal in B.C. and Alberta. They do have the ability to issue the administrative monetary penalties in-house. Quebec has it, but they have to use their—what is it called?—attorney general to issue the penalties on their behalf.

[A voice]

It is the attorney general.

[Karen Shepherd]

Merci.

I think there is something for the administrators of the act to have that within their control. This is one of the things, when I'm looking at B.C. and Alberta, that I think is key as a model.

In terms of the United States, to be honest, I think the changes that came into force with the Lobbying Act were actually asking for greater transparency in terms of the monthly reporting with designated public office holders. The one difference with the Americans is in putting in financial information. It makes sense in the States, where election and campaign laws are quite different from those of Canada. I'm not sure what that would add in Canada in terms of transparency.

[The Chair, NDP, Jean Crowder]

Your time is up.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Okay. Thank you, Madam Chair.

[The Chair, NDP, Jean Crowder]

Thanks.

Monsieur Dusseault, for five minutes.