Information & Ethics Committee on Dec. 13th, 2011

[Rick Dykstra, Conservative, St. Catharines, ON]

Thank you, Madam Chair.

I don't know if I'll take five, but I'll do my best.

I know you face a lot of challenges; it's not an easy job. You seem to fall down on both sides of the sword in terms of being criticized and being complimented.

I've had this discussion with the ethics commissioner, and she does have a concern about this, and that is the apparent use of your office and her office for frivolous political applications. By that I mean that someone from the opposition party, for example, files an application with you for an investigation on what they believe to be and know is frivolous, but from a media perspective or a political perspective it gives some appearance of wrongdoing. That wrongdoing may actually not be the case.

But I wondered about the whole aspect of an application being filed with you by someone from any of the political parties in this regard, which would be kept confidential until at least you've had a chance to do a preliminary review as to whether there is any credence to the allegations being made.

[Karen Shepherd]

Well, the act states that I must conduct investigations in private. I've actually built into my process what I call the administrative review, which is my fact-finding exercise. In the administrative review I can get sufficient information to make a determination as to whether it's unfounded—for example, not for payment, or not a registerable activity—or, if it's founded, whether I would be referring it to the RCMP, if I had reasonable grounds, or opening up an investigation perhaps because I thought doing so would be necessary to ensuring compliance with the act or the code.

Once I open an investigation, then I am required to table it in both Houses of Parliament, although there is an ability under the act to cease doing an investigation if I have good reasons to do so. At that fact-finding stage, as you described—something whereby they come in.... If I determine that it's unfounded, it stays within the office. I will write back to both parties: to the person alleged to have breached the act and to the member of Parliament. The results of the administrative review are not made public.

[Rick Dykstra, Conservative, St. Catharines, ON]

I guess my question, further to that, is if an individual files an application, is it not in the best interest of your office and of the individual who files the application that it remain confidential until you at least have a chance to do a preliminary review as to whether the charges or the allegation should be further investigated? Would that not be helpful? The ethics commissioner seems to say, in the conversations we've had around this issue, that she would appreciate it not being made public beforehand, because that puts her in a very awkward and difficult position in terms of trying to make a determination of whether the allegations that have been submitted to her, or to you, are in fact at least serious enough to warrant further investigation.

[Karen Shepherd]

Given that the act requires me to look into investigations in private, and for the integrity of things, it would be preferable that things be not made public, especially before I've even had a chance to look into the matter.

[Rick Dykstra, Conservative, St. Catharines, ON]

Is that potentially one of the recommendations that you could make?

[Karen Shepherd]

It is not something that I have put forward, but yes, I can consider that.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thank you for that. I appreciate the honesty of the answer.

The other area of concern I have is this. It seems that overall, while we always have examples in which people have crossed the line, and you've made your rulings as such, we also have a large percentage of individuals and companies who fall under the act but are fulfilling their obligations, as you've noted. In fact, to some extent, when they've made a mistake they come running over to make sure they try to find a way to correct it. Through your report I see that rather than turning everything over to the RCMP immediately, you are trying to find some latitude here to find room for that.

It's a general question. Then I wanted to ask, if I have the time, a very specific one.

[The Chair, NDP, Jean Crowder]

You are out of time. Make it a brief question and I'll allow the commissioner's response.

[Rick Dykstra, Conservative, St. Catharines, ON]

The general question is this. For the most part, you've seen improvements with respect to those using the act and filing with you. Overall, would you say that it's a much better system today than it was six years ago?

[Karen Shepherd]

I would say that the changes made to the act have strengthened the act and that having the educational mandate and these reports to Parliament is a positive sign, in that people are coming forward and wanting to disclose when they're being late—making what we call voluntary disclosure.

[The Chair, NDP, Jean Crowder]

Thank you, Mr. Dykstra.

Mr. Andrews.

[Scott Andrews, Liberal, Avalon, NL]

Thank you, Madam Chair.

I just have a follow-up on my last line of questioning, when I ran out of time. We talked about exemptions. You mentioned Alberta and Toronto. Do they have specific lists of exemptions that we should look at?

[Karen Shepherd]

They are definitely examples. I think the City of Toronto has quite a long list of exemptions that they are currently reviewing, if I'm correct. They should be really limited, as opposed to very lengthy in nature.

[Scott Andrews, Liberal, Avalon, NL]

Are there any other witnesses that you think this committee should bring forward to ask questions of, such as the City of Toronto or Alberta? I know the commissioner of B.C. is coming. Is there anyone we're missing whom we should ask to come as witnesses?

[Karen Shepherd]

B.C. is definitely good because they do have the monetary penalty. Alberta has it as well.

I believe the Province of Quebec or the commissioner from Quebec is coming as a witness. Is that right?

[The Chair, NDP, Jean Crowder]

Yes.

[Karen Shepherd]

They have something comparable in terms of the size of the office. They're different in that their registry is actually outside of the actual office.

I think that's a pretty good witness list.

[Scott Andrews, Liberal, Avalon, NL]

I have one final question going back to recommendation number 1, taking away the significant part of duties. Would that cover people who own these companies, who have people working for them but they actually own the lobbying firm or the government relations firm themselves and don't actually do it? Would that bring them into this as well, if they make a phone call or they direct one of their staff to do some lobbying? Does that include them?

I'm thinking of people who have fallen into the five-year exemption. They may own a company. They don't actually do the lobbying, but they actually have staff who do it.

How do we catch them? How do we make sure they get encompassed in this?

[Karen Shepherd]

The “significant amount of duties” is about those who are actually communicating with public office holders on a registerable activity. The firm itself might be captured if the firm was doing a certain amount of...but it has to be lobbying with federal public office holders.

[René Leblanc]

May I just add something? If I understand your question properly, you're referring to a lobbying firm or a firm that's in the government relations business, as opposed to a firm that's in the manufacturing industry, in which case these are considered consultant lobbyists. The 20% rule, the significant part of duties, does not apply to consultant lobbyists. It only applies to firms that have in-house lobbyists for their firm, like a manufacturing company that has a government relations unit within it, as opposed to hiring a consultant from outside.

[Scott Andrews, Liberal, Avalon, NL]

Okay, thank you.

[The Chair, NDP, Jean Crowder]

Thank you, Mr. Andrews. You have time.

[Scott Andrews, Liberal, Avalon, NL]

That's okay.

[The Chair, NDP, Jean Crowder]

Okay.

Mr. Butt, for the final question.

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

Thank you very much, Madam Chair.

I was interested and I wrote some notes from some of your testimony earlier, Madam Commissioner. Is any violation of the act right now considered a criminal offence? I think that was the line you used. Is it considered a criminal offence, any violation of the act?