Information & Ethics Committee on Sept. 22nd, 2011

[Karen Shepherd]

I have to admit, I'm not the expert on the different types of firms. I'm the expert on what constitutes a registerable or lobbying activity. I'd probably have to answer it in a different way.

The act requires that if an individual is, for payment, communicating with a public office holder regarding a registerable activity...and, as I mentioned earlier, a registerable activity is one that makes a development or change to any policy or program, legislation, or regulation, or tries to obtain a financial benefit such as a crown contract or contribution. In the case of a consultant lobbyist, it depends on whether they're actually being paid to arrange a meeting between their client and a public office holder or trying to obtain a financial benefit. So all of those factors need to be there, and they will determine whether, in the case of a consultant lobbyist, something needs to be registered.

[Scott Andrews, Liberal, Avalon, NL]

I'm still a bit confused, because I would not know. You're an expert, so in your expert opinion is there a difference between a government relations firm and a lobbying firm? I don't understand the difference between the two. Do you see a difference, in your expert opinion?

[Karen Shepherd]

As I mentioned, I'm not an expert in terms of the different opinions.... What I'm looking for is whether an individual or a firm is required to register under the legislation.

[Scott Andrews, Liberal, Avalon, NL]

Do you monitor what former MPs do in the way of any potential lobbying, or does your office take a case only if it is referred?

[Karen Shepherd]

We conduct monitoring activities--what we call our media monitoring--to see whether we see cases of lobbying or lobbyists being mentioned. As for my mandate, I do not see former people as being part of my mandate.

[Scott Andrews, Liberal, Avalon, NL]

You mentioned that you did an investigation of Stockwell and you closed it. Have you done any other such investigations of former MPs that we wouldn't be aware of?

[Karen Shepherd]

As I've said, at the administrative review stage, I inform the relevant parties, but there needs to be a reason or a possible allegation for me to look at something.

[Scott Andrews, Liberal, Avalon, NL]

So if you do a review and then close the case, you don't report that publicly?

[Karen Shepherd]

I do not report the names of the individuals, because if I've closed an investigation at the administrative review stage, that's because it's unfounded. Otherwise it goes further. If I do an investigation, then I'm required by legislation to table a report.

Before the parliamentary break, the committee asked me if, when something was in the public interest, I would confirm whether I was looking into it and/or why I was not looking into it.

[Scott Andrews, Liberal, Avalon, NL]

Thank you.

[The Chair, NDP, Nathan Cullen]

Thank you, Mr. Andrews.

Mr. Mayes, go ahead, please, for up to seven minutes.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Thank you, Mr. Chair.

This is a new committee for me, so I have a lot to learn.

Thank you for being here today.

There is something I'd like to understand. You receive a complaint, it's brought to your office, and you assign an investigator to review it. Could you just give me an idea where you go from there? Do you assess where the complaint is coming from? Is it politically motivated? Where does the assessment come in, and then when you proceed, what process do you take?

[Karen Shepherd]

We actually have published what I call the guiding principles and criteria on my website, which are the criteria we use in assessing each file, and also the different compliance measures.

In terms of your question, I'm looking at the facts of the case. First of all, what is the allegation? Is somebody breaching the act, for example? Has the individual not registered and performed lobbying activities? In that case, if it's consultant lobbyists we would be trying to gather information through interviews or other means as to whether the individual received payment, evidence that they did communicate orally or in writing with a public office holder on a registerable activity. For the consultant lobbyists we would also be looking at whether they arranged meetings.

One of the reports that I tabled to Parliament last year, where I found the individual to have breached the code, was that the individual had been organizing meetings with public office holders for two mining firms and had not registered, which is a requirement under the act. Even though they don't register under the act, the Lobbyists' Code of Conduct still applies if they should have registered.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Just to clarify something, I saw the news clip with regard to Stockwell Day's discussion about his new career. He wasn't going to lobby; he was going to advise people how to lobby, so he was actually helping your department and letting people know what the rules and regulations are and how to approach lobbying government. He wasn't lobbying on behalf of any particular interest. I think that should be on the record.

As far as non-profits are concerned, I have a family member who is working for a non-profit overseas in Africa. The non-profit she deals with does get some funding from CIDA on occasion, and we're always very sensitive about that. I'm just wondering, is there any way you deal differently with a non-profit organization?

[Karen Shepherd]

For a non-profit organization, because it is non-profit, it would be an in-house organization lobbyist. For an in-house organization lobbyist, again it goes down to the criteria: are the employees paid; are they communicating on a registerable activity or trying, as you just indicated, maybe to get a grant or some kind of financial benefit. In addition, there's the significant amount of duties test. For a non-profit organization, when you're looking at the significant amount of duties test, which is a cumulative test.... For example, if I was paid and lobbying 12% of my time with federal public office holders and René--I'll pick on you--was lobbying 8% of his time, collectively we're hitting that 20% mark. The non-profit would be required to register by the senior officer, listing all of those who are being paid and are lobbying.

So they're treated the same as other non-profits or even corporations in the current legislation, with the exception of corporations where they have two lists in terms of the individuals who are lobbying, whereas for a non-profit, once the organization has to register, no matter what percentage of time they spend registering they need to be listed. So that particular organization may or may not be registered if they haven't hit the significant amount of duties test.

As I indicated, I'm looking at the fact of transparency, and therefore I've recommended in the amendments to the act potentially, for the legislative review, to remove the significant amount of duties test. But I have also suggested in my recommendations that Parliament might want to consider whether particular exemptions should be there for particular non-profits of certain sizes, for example, or charities. So that may be a difference that could occur should Parliament choose to take the significant amount of duties test off.

When I look at some of my provincial colleagues, there are some that are not including either non-profits--actually the City of Toronto has an exemption as well for non-profit communities, I think it is. I can get back to the committee on the exact exemptions if you like.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

I'm just curious. We have to do disclosure forms as far as conflict of interest.... I'm wondering, is there any thought of you doing a disclosure for members of Parliament? I would say, okay, I have a daughter working for this NGO who does receive funding from CIDA--just to be above board and open. Is there any thought of doing that, or do you think it would be something that would be of any value?

[Karen Shepherd]

In terms of the current mandate I have right now, it's about lobbying and the lobbying legislation. So it would be changing the focus of the act, if I were actually getting disclosure from parliamentarians as to where their conflicts were.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Okay, I see what you're saying. I guess a daughter telling a father, over a turkey dinner, how to run government is not lobbying.

[Voices]

Oh, oh!

[Karen Shepherd]

Yes.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

That was just an interest of mine, because I have run across.... The NGO has been in my office and I have talked to them, so I just wondered about that.

[The Chair, NDP, Nathan Cullen]

Thank you, Mr. Mayes. And thank you for your disclosure as well.

I'll ask all members to go through their disclosures in their questioning.

Mr. Dusseault, you have the floor. You have five minutes.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you, Mr. Chair.

I would like to thank the commissioner for appearing before us today.

I will be focusing more on lobbying. I will not be touching on the matters dealing with Elections Canada.

As my colleague mentioned earlier, some lobbyists hold fundraisers for ministers in the hope of—at least we assume—obtaining favours in return.

You said that the investigation in such cases was referred to Parliament. I was wondering if it would be more appropriate for you to handle the investigation. I don't think Parliament is independent enough. Certain political parties are biased.

What are your thoughts on that?

[Karen Shepherd]

I think I understand your question.

I do not refer the investigation to Parliament. I, myself, conduct the investigation when there is an alleged violation of the act or the code. In three cases, I submitted a report to Parliament upon completion of the investigation.

I think what you are really asking is what the outcome was. However, all I can do is submit....

[René Leblanc]

Table.