Evidence of meeting #18 for Access to Information, Privacy and Ethics in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was lobbying.
A recording is available from Parliament.
Deputy Commissioner, Office of the Commissioner of Lobbying
In our recommendations, the easiest way we found—and I do not want to oversimplify—is to completely eliminate this provision, these provisions, because they apply to several areas, and to create exemptions for specific groups, which we really do not want to overload. However, we do not have a miracle solution.
NDP
Alexandre Boulerice NDP Rosemont—La Petite-Patrie, QC
So the exemptions will let you avoid a list, which would be nearly endless.
Deputy Commissioner, Office of the Commissioner of Lobbying
We can establish classes of exemptions, that is, classes of businesses. We could discuss this at length. In fact, we would like to do so.
NDP
Alexandre Boulerice NDP Rosemont—La Petite-Patrie, QC
I would also like to talk about removing, the word “arranged” from the expression “oral and arranged communications”. I understand the intent; however, in the daily application of the act, how do you apply it with regard to chance communications between two people who happen to be in the same place to buy a coffee and have a conversation?
Does that have to be reported? Does it depend on the content of the conversation? How do you see that?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
It depends, everything depends on the way you go and buy coffee. Is the communication unacceptable? Because it's very likely that you would talk about the hockey game the night before, but that's not an unacceptable activity.
In terms of transparency, if you are talking about an activity where there is really a lot of lobbying, which might change your opinion about a program, or which is about getting money, I believe that this would be an “encounter” under the act. Because we are talking about “oral and arranged communications”.
The way I would explain it to someone... There are so many different examples. In the current situation, under the act, if somebody engages in lobbying right away, that person should indeed register right away.
However, the meeting you described should not really be registered. However, if there is a long line-up in front of you at Bridgehead, and someone suggests leaving the coffee shop, at that point, you have agreed to a meeting and it becomes an organized communication.
So it would be easier if the provision were removed.
Conservative
Colin Mayes Conservative Okanagan—Shuswap, BC
Thank you, Madam Chair, and thank you to the witnesses for being here today.
Commissioner, in your presentation this morning you talked about the registry of lobbyists and expanding the capture to include organizations and corporations that do not meet the significant part of duties. I agree with that. I think we're really looking at the access to influence.
As far as the intent or purpose of the lobbying, as members of Parliament we have people who come to lobby to provide information. Somebody who comes to try to unduly influence a vote or have a benefit is a little different. For instance, if somebody came in and lobbied me and said that if I gave them an ad contract they would give hundreds of thousands of dollars to my party, that is something that should be reported and is undue influence.
There would be a penalty for someone who failed to report—or a late registry. But what if somebody makes an offer or something and I don't report it? For instance, somebody comes in and says that if I do something for them they'll give so much money for my campaign, or whatever. Do I have a duty to report that I have been approached and asked for undue influence? Can you see where the penalties would be at different levels?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
Yes. I might ask my legal counsel to intercede as well on that case. It's an example that is not lobbying per se. Lobbying is to change a policy or program or to obtain a financial benefit. The situation you're describing would fall under the Conflict of Interest Act, or it might even be criminal.
Bruce Bergen Senior Counsel, Office of the Commissioner of Lobbying
There is a part in the Criminal Code that deals with fraud on the government. There's a provision regarding undue influence, or influence peddling, as it's commonly known. The scenario you sketched out might be a criminal offence, as opposed to an offence under the Lobbying Act or other legislation.
Conservative
Colin Mayes Conservative Okanagan—Shuswap, BC
So you're saying there's a transition from lobbying to conflict of interest.
Commissioner of Lobbying, Office of the Commissioner of Lobbying
Or influence certainly.
Conservative
Colin Mayes Conservative Okanagan—Shuswap, BC
In your recommendation you say there should be a community provision in the Lobbying Act. Can you expand on that? Is that correct? It's recommendation number 9.
Commissioner of Lobbying, Office of the Commissioner of Lobbying
Do you mean the provision on immunity?
Senior Counsel, Office of the Commissioner of Lobbying
I'll say a few words about that.
When our office was looking at the Lobbying Act and preparing this paper to make some recommendations, we looked at provisions in relation to administrative monetary penalties and what they were doing in other jurisdictions. We looked at some of the federal legislation for what we considered to be our counterparts—the other agents or officers of Parliament. We noted that in essentially each and every one—the Auditor General Act, the Conflict of Interest Act, the Privacy Act, the Access to Information Act, and so on—there was an immunity provision, and that was lacking in the Lobbying Act. I don't know exactly why; perhaps it was simply an oversight. That's why this was added as a recommendation.
Conservative
Colin Mayes Conservative Okanagan—Shuswap, BC
Commissioner, do you have any thoughts regarding the level of penalties for those who violate the act and whether it's for not reporting? There must be a level you think would be a deterrent for those to ensure that they comply.
Commissioner of Lobbying, Office of the Commissioner of Lobbying
What I'm looking at right now is the fact that having the ability to issue administrative monetary penalties would be corrective in nature, as opposed to punitive. When I look at my counterparts in B.C. and Alberta, they have up to $25,000, which seems pretty substantial when you're looking at correcting behaviour. Also, I think it's important to have the ability to post the names, not only just the amounts, so that it's not just sending a fine and no one's aware of it. There would be something on my website that would state that a particular fine had been issued for the following reasons, and the amount.
Liberal
Scott Andrews Liberal Avalon, NL
Thank you, Madam Chair.
I have a question. In your report yesterday on the two individuals involved, there were 10 allegations, four of which you found in breach of the Lobbying Act. If any of your nine recommendations were to be adopted, would they have been found in breach of more? Which one of those recommendations would have found them in breach of the other six?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
There were four that I found were unfounded. The reason they were unfounded was because not all of the elements for registerable activity were there. They were either not formed for payment or expectation of payment, or it was not a registerable communication. I think there was a comment about strictly speaking for information. If you're really just trying to get information on the eligibility criteria of a program, that's not a registerable activity.
In terms of those where I did find that they had breached the lobbyists' code of conduct by not registering...the nine recommendations, those that deal more with the Lobbying Act, wouldn't have prevented, I believe, the situation that happened in this particular case, because the individuals clearly felt they were not lobbying. So removing the significant amount of duties test wouldn't have done anything because they did not believe they were lobbying and needed to register.
The one recommendation that I think would have made a difference is having the ability to issue administrative monitoring penalties, like the option of not sending it to the RCMP. There would have been a decision out sooner, because I could have used the opportunity to present views. My intent would still be to fine them and give them so many days to respond. With that, then, I could have had a penalty out and a fine, and something on the website probably a lot sooner.
Liberal
Scott Andrews Liberal Avalon, NL
Let me ask you about the RCMP. Overall, what is your impression of your communications with the RCMP? Do they know the act fairly well? Is the Lobbying Act something that maybe the RCMP are not too familiar with? Do they come back to you with questions? How do they involve you, just in your experience? My question is, basically, do you think there are some issues with the RCMP knowing the act? Maybe, when something is referred to them, they don't really know what to do with it because it's not something they normally deal with.
Commissioner of Lobbying, Office of the Commissioner of Lobbying
My office experience with the RCMP has actually been positive. Yes, they have called us, and they've had questions on either the act or the file going forward to them. In all cases where they've come back, they have commended the office in terms of the well-documented files they're receiving. So for other reasons they're deciding with the prosecutor's office not to go further in terms of laying charges. The relationship that I have with them, in terms of what I'm sending over, is positive.
December 13th, 2011 / 10:05 a.m.
Liberal
Commissioner of Lobbying, Office of the Commissioner of Lobbying
It's A Division, I believe, commercial crimes.
