Information & Ethics Committee on Feb. 2nd, 2012

[The Chair, NDP, Jean Crowder]

Your time is up, Mr. Andrews.

The other Mr. Andrews, a brief comment to finish.

[Stephen Andrews]

There's no jurisdiction that I'm aware of in the OECD that would do that, that has legislation around this kind of matter. It's all narrowly defined in terms of actual direct communications to government or third-party communications. That is what is defined as grassroots lobbying; that is, a call to action whereby a lobbying organization gets a number of people to write letters to MPs or develops advertising and that kind of thing that is advocating a specific legislative or policy change.

[The Chair, NDP, Jean Crowder]

Great. Thank you, Mr. Andrews and Mr. Andrews.

Mrs. Davidson for five minutes.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thanks very much, Madam Chair.

Thanks very much to our presenters here this morning. It has certainly been interesting. I think we've got into a different level of understanding about where we need to go. So it has been great to hear what every one of you has had to say.

Mr. Capobianco, you talked about dealings and relationships with different levels of government. You talked about the City of Toronto, I believe, and about the province and the federal government. Are there things that we need to be doing here at the federal level that will help harmonize policies and rules as far as dealing with the different levels of government?

[John Capobianco]

That's a really good question. The reason why it is so is that in our association, specifically, more so than the GRIC, we're based in Toronto, so a lot of our members are firms that do work with Queen's Park and also with the City of Toronto. We've been lucky, in that the lobbyist registrar of the City of Toronto has been very eager to work with us, and in fact a couple of members of our board worked with her at the time to come up with the lobbying rules for Toronto, and now Lynn Morrison, the commissioner for Ontario, has also been engaging with our association.

To your question specifically, I found different levels of lobbying and lobbying activities within the three jurisdictions. I think any way or any how we can get all that to be somewhat more streamlined or focused on a lot of similarities would be helpful to our profession.

I know it's different because how you lobby Toronto City Hall is totally different from how you would lobby Queen's Park or even Parliament Hill. So some differences have to be accounted for from that perspective. I'm encouraged by the fact that all the lobbying registrars, from the City of Toronto and other municipalities across Canada as well, and certainly Ontario, are looking to our associations and other groups to try to get the common denominator of lobbying rules.

They're looking at Ottawa specifically and asking what's working best with Ottawa, what's not working best with Ottawa, and our advice was the same, which is that the five-year rule is quite a hindrance, as is the 20% rule.

I hope that answers your question.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Yes, it does.

Are there any particular differences in policy that are creating confusion within your industry?

[John Capobianco]

I don't know of any that cause any specific confusion.

[Stephen Andrews]

There are differences, but I don't know if there's confusion.

For example, the federal system requires the filing of monthly communications reports that the lobbyists would have with designated public office holders, as do B.C. and Alberta. Manitoba has legislation; it's not in force. Ontario and Quebec do not have requirements to file monthly communications reports.

Typically, the provincial systems are more about registration processes and the federal system has a bit more of a regulatory component. Some provincial systems have lobbyist codes of conduct that have the force of law, such as Quebec. On the federal side, the code of conduct does not have the force of law, though it's enforced through reports to Parliament.

I think the issue is the role of codes of conduct. For example, the Ontario registrar has made it clear to us in various presentations and discussions that she's looking at eliminating the 20% rule but not moving forward with the introduction of any form of a code of conduct.

Provincial systems are a little worried about resources for managing codes of conduct, I think. In Quebec's case it's a little different, since it has the force of law, so if you violate the code of conduct in Quebec it could carry the same sorts of penalties as violating the act itself.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Mr. King, did you have anything to add to that?

[Charles King]

No, I think they did a very good job.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Okay, great.

One of the recommendations of the commissioner was that the education mandate of the commissioner remain explicit in the legislation. I think in both of your presentations you talked a bit about the education mandate or perhaps the lack of that. Could you both please comment on that and where you think we should be going?

[Charles King]

I would argue it's incumbent upon her to go out and educate as many people as possible, and that would be everywhere from MPs to senators to bureaucrats.

We've done a couple of information sessions on behalf of GRIC, where we've invited her to come and do some more explanation with our members. I think it's incumbent upon her also to go into the general public and spend more time educating them.

When people ask me what I do for a living, I say I'm a government relations consultant. They then kind of look at me and ask what that means. When I say I'm a lobbyist they say, “Oh...”. When I ask if they know what a lobbyist is, they say no. Then what's with the perception of it?

I think it's incumbent upon all of us to spend more time educating the public about what we do, that it's constitutionally legal and above board. We follow a set of pretty complex rules, and by and large we govern ourselves according to the act.

[The Chair, NDP, Jean Crowder]

Thank you.

Your time is up. Thank you.

As a reminder for the committee, we actually have four provincial commissioners coming on Tuesday, as witnesses.

Mr. Boulerice, you have five minutes.

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

I want to start with a quick comment. I get the sense that nowhere in Canadian history has Brixton's Pub been mentioned more than here, in this parliamentary committee.

I think the work you do is entirely legitimate, useful and practical, and that it raises the level of debate and discussion. Clearly, that is not in question. But I do want to say that it is not the presence of lobbyists that bothers me, but rather the fact that some people on Parliament Hill cannot afford lobbyists. That is unfortunate. You don't have to respond to that; I just wanted to put it out there.

The 20% rule seems to be problematic. On the one hand, I appreciate having a limit. But on the other, you can tinker with percentage calculations when you want to. If you say that lobbying represents 15% of your activities, you do not have to report it.

However, 15% can have a major impact. For instance, if you call up Brian Mulroney or Jean Chrétien, and you make one lobbying call a year, the message will probably be heard loud and clear.

If we did away with the 20% threshold for former DPOHs, as you suggest, would a former minister or prime minister who made one or two phone calls a year to a current minister have to report it?

[Charles King]

That recommendation applies solely to DPOHs. The 20% threshold would be maintained. The recommendation applies solely to those who, like me, work for corporations.

Basically what we're advocating is getting rid of the 20% rule only for DPOHs who go in as corporate lobbyists, who work for a corporation.

[Jim Patrick]

Right now, under the rules, the former ministers you're using in your hypothetical example could not go and work for a trade association, could not go and work for a consulting firm, but could go and work for a corporation as long as they estimated that 19% of their time is all they spend on lobbying. We're saying that if you are a former designated public office holder and you're under the five-year ban, you should not be able to any lobbying, period.

[Charles King]

There would be no exception.

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

What would happen after five years?

[Charles King]

You would do as you please.

The rule states that, after five years, you can do whatever you please.

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

The Public Affairs Association of Canada wants to do away with the 20% limit for everyone. In that case, how would you define a lobbyist in terms of a community group or a small organization that contacted us to discuss a specific matter?

In my riding of Rosemont—La Petite-Patrie, that could potentially mean 83,000 lobbyists would have to register. Where should we draw the line?

[John Capobianco]

The concern we have with the 20% rule is how you define the 20% rule. In some cases it's 15% versus 20%, or is it 25%? It gets into that area where there's a lot of potential for miscommunication or misunderstanding of those rules, which could cause lobbyists to be, in part, in an infraction against some of the lobbying rules, which gets them into trouble.

Our view is that if you're a lobbyist you're a lobbyist. So if you're lobbying government, no matter what role you're playing and what issue you're doing, notwithstanding the five-year rule, which we're saying to reduce to one, it should be registrable. That way it gets away from any potential issues or conflicts that might come up that might cause a lobbyist to be in trouble. That's what our general sense is, what our members are telling us.

I don't know, Stephen, if you've specifically talked about it with our members.

I think a lot of that comes down to the clarification that if you're a lawyer working for a law firm and you're lobbying a firm, you are a lobbyist. If you're in communication with some government official on behalf of a client, you should be able to register if that's a registerable activity.

[Stephen Andrews]

I think it's clear that the point of the recommendation is that transparency should trump some of those circumstances where small groups are doing occasional lobbying, assuming they are actually engaged in registerable activity; that is, they're paid and communicating to government about specific policy changes and the various activities defined in the Lobbying Act as it is now.

I think the commissioner could potentially look at special cases and make recommendations where a small group is not being paid or receiving any sort of financial benefit. These may be exemptions to this particular rule, but I think it's probably more important to have a clear rule related to the transparency of all registered activities.

You mentioned earlier the case of a former prime minister. I think a number of individuals at that level sit on boards of directors of corporations, and to the extent that they do registerable activity at the federal level, they would be considered consultant lobbyists and have to register any form of any single communication. That would be an important distinction.

[The Chair, NDP, Jean Crowder]

Thank you, Mr. Boulerice.

Mr. Lemieux, for the final question.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

Thank you very much.

From your point of view, how are complaints initiated? Where are they coming from? I know you can't answer for the commissioner, but I'm sure you've got clients who perhaps explain their situation to you. If someone is doing some lobbying and they don't register, then the fact that they might have even lobbied in the first place is a bit unknown. I'm interested in knowing, from your point of view only, if this is a sort of competitor-versus-competitor type of complaint, or is there something else at play? That is one question.

The other question I have is how the average lobbyist views lobbying within the Lobbying Act. What I mean by that is, do they see it as a low-risk affair? In other words, “Oh, I see the speed limit is 80; I'm going to stay below 80 and everything should be fine.” Or do they see it as something ready to pounce on them and does it continually occupy their mind that this could backfire at any moment?

I'm wondering if you could give us a feel for their comfort level. I understand there are concerns and I understand there are some things that need to be fixed. What's the overall comfort level for the average lobbyist?

So the first thing is on the complaint and the second thing is on comfort level.

[Jim Patrick]

On the complaints, I think you're right. This is essentially a complaints-based investigation process, which is very similar to any other tribunal or officer of Parliament you can think of. Media stories sometimes bring cases to the attention of the commissioner, and I think she has mentioned that in front of the committee.

I don't see that changing, short of the commissioner putting on a disguise and staking out Brixton's on a Wednesday night. Good advertising for Brixton's today. I think it will continue to be a complaints-based process.

With respect to your second question, I think most lobbyists would err on the side of caution. If you hit an area and you're not sure.... I must have a record of fifty e-mails to the commission checking a point on something. They're very good about trying to help lobbyists understand the rules.

Sometimes the answers don't clarify things as much as we'd like—we've pointed to a couple of examples—but I have to say the staff there is typically excellent. The processes they have put in place for their computer systems have become much easier. They've heard concerns about that and they've responded.

I'd say the comfort level of how lobbyists interact with the commission on a day-to-day basis is pretty high. I don't know many people who are shy about calling up and saying they're about to go into a meeting and they don't know if they have to report it. The advice you usually get is along the lines of “err on the side of caution”, but it's better to ask for an explanation than forgiveness later. I think most people would find the day-to-day interaction between the commissioner, her staff, and the lobbying community to work very well.