Information & Ethics Committee on Feb. 2nd, 2012

[The Chair, NDP, Jean Crowder]

Mr. Andrews just wanted to get in there, Mr. Dreeshen.

[Stephen Andrews]

There are also some complexities involved in the nature of the Lobbying Act. If you are a member of a board of directors for an organization and you routinely lobbied on behalf of that corporation, for example, you would be considered a consultant lobbyist. There may be some complexities around that.

Also, if we are talking about a partner in a law firm, for example, or about a limited liability partnership such as accounting firms and law firms, again it's not precisely clear how, if you are lobbying on behalf of your limited liability partnership, you would be viewed. Right now, roughly speaking, you're viewed as a consultant lobbyist.

[Earl Dreeshen, Conservative, Red Deer, AB]

When you talk about the social meetings that might come up, you're also talking about the accuracy of the reporting. You have the situation, then, where an MP is at a particular event, so you have the lobbyist saying, “Well, I believe I should be mentioning that I have met with these particular individuals.” You may have someone who is handing out cards, who then says that they have met with an MP. The MP could have been giving his card to these individuals for a future meeting or whatever. But there is a point then that the MP should then be able to remember each and every person he has met with, and then there is concern about being able to have the MP's records match with the records that you're going to have there.

I would think that there would just be a great deal of confusion when that takes place, because I know that I might talk to a lot of individuals who may want to say “Yes, I've talked to 12 MPs here”, so they could check it off to take back to their bosses. But that interaction might not have meant the same thing to the person who was approached.

I wonder if you could comment on that.

[Charles King]

I think you're right; there are people who do that in order to satisfy their management's expectations. There are people who will say that they met with 12 MPs the night before. “What did you talk about?” “Nice shoes--you know.”

But if you get into the substance of the matter, then I would argue that's something you have to register—no ifs, ands, or buts about it.

[Earl Dreeshen, Conservative, Red Deer, AB]

I have a question for PAAC. In one of your recommendations you talked about the commissioner not having sufficient resources to issue advanced rulings or advisory bulletins in a timely manner. I'm just curious as to how you have come up with that conclusion.

[Stephen Andrews]

A number of individuals have consulted with the commissioner's office around certain kinds of grey areas involving different kinds of cases that may or may not involve registerable activity--certain kinds of organizations, certain kinds of communications. For example, what exactly is, as the GRIC mentioned, an oral and arranged communication? Under what circumstances is that considered to have taken place?

I've been personally involved on behalf of clients in a number of consultations with her office, and she has made it very clear that even though she has the legislative authority to issue interpretation bulletins, advisory bulletins, and opinions of that nature, she just does not have the time or resources to answer to certain kinds of grey areas. Sometimes that's very critical.... These are not the headline-grabbing cases. These are very complicated cases involving certain kinds of organizations—certain kinds of crown corporations, for example.

[The Chair, NDP, Jean Crowder]

Thank you, Mr. Dreeshen, and thank you, Mr. Andrews.

We'll go to Mr. Angus for five minutes.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you.

I think that when we're talking about clarifying the rules, this isn't a red-tape-cutting exercise. I think the rules were put in place because we had a revolving door and all kinds of monkey business going on, and the Canadian people expect us to have rules people play by. So there is an Ethics Commissioner, and if a lobbyist does a big political fundraiser, say representing a cement firm for a key minister, the Commissioner of Lobbying steps in, and the Ethics Commissioner steps in. It might seem nice to have a one-stop shop, but I don't think that's in the interest of the Canadian people.

The RCMP have a role to play, but we're concerned here that the RCMP are a dead-letter shop. So it might be convenient to have the lobbying commissioner not able to follow up when it has gone to the RCMP, but we have never seen the RCMP do anything with any of these cases.

When we're talking about clarifying the rules, shouldn't we be making sure that at the end of the day this is not about burying people in nuance because the lobbying commissioner doesn't have time for that? Shouldn't we ensure that if things are not correct, we have the appropriate measures in place? We're not sure if they're all there yet. They're almost there and it's a good system. But given the fact that the RCMP don't do their follow-up, don't you think it's incumbent upon the lobbying commissioner to follow through if she's investigating something? She needs to follow through and be able to deliver that report so it clears people.

[Charles King]

I agree--as we said earlier, as long as there is a sense of fair due process. But to have somebody be the regulator, the jury, and the judge.... If the rules aren't clear, I don't think we're getting a fair shake at the end of the day. This is a system where you're guilty until proven innocent, not innocent until proven guilty, so it has a big impact on people's reputations and the way they conduct their business.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Welcome to politics. If charges are made against me in the press, I'm guilty back home until I can prove otherwise. We're not talking about people being in a normal business. You're dealing in politics, where people are trading on influence.

Have you guys been hard done by? I don't really see where that has happened. The lobbying commissioner has done some fairly reasonable reports, as far as I can see. I don't see that she's been beating up on you.

[Charles King]

We don't know everything she does. Not everything is made public.

[Jim Patrick]

The difference is that when you are subject to accusations in the media you're aware of them and able to respond. We've had an individual, a member of our association, just get a letter saying “We've just closed an investigation on you that we've been conducting for seven years”. That person wasn't aware that an investigation was under way.

The problem in having multiple, simultaneous parallel investigations on the same set of facts is the potential for different conclusions. What would the courts do if the RCMP cleared somebody of placing a public office holder in a conflict of interest, the Commissioner of Lobbying found the lobbyist guilty, and the Ethics Commissioner said there was no conflict of interest in the first place?

[Charlie Angus, NDP, Timmins—James Bay, ON]

Okay, so who do you respond to then? Is it the Ethics Commissioner? Is she higher than the Commissioner of Lobbying or the RCMP?

[Jim Patrick]

That's why we're recommending that you need to synchronize the process and harmonize the language in the act so the two commissioners.... Commissioners can only administer the language they're given in the act. The standard in the Lobbying Act is “a real or apparent conflict of interest”. The standard in the Conflict of Interest Act is for “a real conflict of interest”. So lobbyists are being held to a higher ethical bar than public servants and politicians, because we can get hauled up if there is an apparent conflict of interest.

[The Chair, NDP, Jean Crowder]

Mr. Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I'm just trying to get my head around this. If someone has been doing a seven-year investigation and you never heard of it, obviously there wasn't much of a problem. It seems every time I turn around CRA is checking on my daughter's university tuition fees. I have to send forms all the time. I don't know when they start the investigations, but they're doing them. That's the nature of government.

We're talking about an ethical standard that Canadians expect, because we saw what happened under the Liberals and the sponsorship. Canadians are holding us all to a higher standard. I haven't seen evidence that you guys are getting pushed around here, and we haven't seen the RCMP follow through.

There's a standard for us, as public office holders, with the Ethics Commissioner. If the recommendation is that the Ethics Commissioner has to raise the bar, okay. But you don't respond to the Ethics Commissioner, because you're not designated office holders; you respond to the lobbying commissioner. So those are two different functions and we have two different relationships. And then there's the RCMP.

Explain to me how it has to be transformed to make it simpler for you so we still have accountability.

[The Chair, NDP, Jean Crowder]

Please give a brief response.

Mr. Angus, your time's up.

[Jim Patrick]

We're not talking about simpler rules or looser rules; we're talking about clearer rules and consistent rules, so that you have two officers of Parliament examining the same set of facts through the same lens and you don't have situations similar to the ones in which someone was found guilty of putting a public office holder in a conflict of interest that the public office holder was never in.

[The Chair, NDP, Jean Crowder]

Thank you, Mr. Patrick.

Thank you, Mr. Angus.

Go ahead, Mr. Del Mastro, for five minutes.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you, Madam Chair.

I want to thank the witnesses to begin with. This has been an outstanding panel, and I've enjoyed the interaction back and forth from members. It's been very helpful.

Do you have to file the current activity you're undertaking today with the lobbying commissioner?

[Charles King]

No, it's on the public record.

[Dean Del Mastro, Conservative, Peterborough, ON]

Ah, great. There's another loophole.

[Charles King]

You invited us today. You invited us to appear today.

[Voices]

Oh, oh!

[John Capobianco]

The good news, Mr. Del Mastro, is that we both have a clear indication of what the discussions are about.