Information & Ethics Committee on Feb. 4th, 2013

[Prof. Ian Greene]

I see.

[Scott Andrews, Liberal, Avalon, NL]

Is that something we should really look at or is there something else in the definition that he suggested that we should change?

[Prof. Ian Greene]

My view is that it's good to make it as clear as possible. If you include “apparent” in the definition itself, it's clearer than it would be if implied elsewhere. Members are less likely to accidentally breach the rules if it's clarified in the definition.

[Scott Andrews, Liberal, Avalon, NL]

There's something else you mentioned in your opening statement about the number of reports the commissioner has done with regard to members of Parliament. She's also requesting a change in addressing this information relating to her work, because sometimes statements arise and comments are made. She doesn't have the authority to address these comments and this misinformation. Is that something for which her mandate should be clarified so she can address this misinformation rather than letting it fly out there?

[Prof. Ian Greene]

That's a very good point.

Over the years there's been a lot of misinformation, particularly in terms of what Dr. Shapiro did but also in terms of some of the things Mary Dawson has done. That's harmful. It's not good for the reputation of the office. Right now, you're right—her hands are tied and she can't reply.

A lot of thought would need to be given to how that information could be corrected while her reputation for being independent and impartial is maintained.

[Scott Andrews, Liberal, Avalon, NL]

Mr. Levine, do you have any thoughts on that last question?

[Gregory J. Levine]

Yes—on both, if I may.

On the speaking out, yes, I agree with that last point that Ian Greene made. I mean, part of this goes with the territory, doesn't it? She's not a debating club, she's an investigator who will provide a report at a certain point in time and speak her mind about it.

In terms of broad education, about how the act works, she has the opportunity to do that anyway. I would be kind of uncomfortable if she were seen to be getting drawn into debates and losing her objectivity. I think that's the point that Professor Greene just made.

On the apparent conflict of interest, there was only the one recommendation. It was recommendation six in the Oliphant recommendations. On the point that the commissioner has made several times, that this appears in other parts of the act, it sort of does. Again, I think that goes to the point of clarifying and making it clear that this is dealing with conflict of interest, which is one particular form of rules. The places that it comes up, in other parts, are about the actual, substantive misbehaviours. I think they're different.

So there are different sets of things that need to be dealt with.

[Scott Andrews, Liberal, Avalon, NL]

That was one of my questions for you about administrative monetary penalties. I found your comments very interesting that the penalties that are there now are so small that one would say, okay, yes, it's the cost of doing business.

I agree with that, but let's talk about those substantive branches. I think you said that these should be put into some different categories of breaches of the act. What different categories would you look at, and what would be the corresponding penalties?

[Gregory J. Levine]

Sorry, I was probably unclear. I think there are actually two categories. One is a set of misbehaviours: misuse of information, inappropriate acceptance of gifts, and so on. These are actual misbehaviours. If you do them, you've done something wrong. You're not merely in a conflict of interest.

If you step back conceptually, conflict of interest is different from those rules. Conflict of interest is about the potential to do something wrong. You have a private interest that could be furthered. Now what do you do? Do you step back or do you act on it? If you act on it, then you've crossed the behavioural line. So in the act there actually are two different sets of things.

In terms of the substantive penalties, I think there should be a range of penalties, ranging from apology to—for public office holders and cabinet ministers—dismissal. There needs to be, in a way, progressive discipline. There needs to be a range of things.

Now, there could be fines, but I think if you leave the fines the way they are, it's not going to amount to much.

[Scott Andrews, Liberal, Avalon, NL]

One of the things we notice is that those people who leave public office and are not here anymore...whether they be a public office holder or someone else who falls under the act. We saw Mary Dawson just recently write up someone for using their interest while they were in a public office after their...post-employment.

Basically you get written up and that's the end of it. There's no penalty for that individual. There's no enforcement. There's nothing that can be done because that individual has already left.

[Gregory J. Levine]

Right. That's a good point.

Probably the only way you can deal with post-employment is by fine—or imprisonment, I guess, but the act prohibits criminal offences being created, so you couldn't really assume—

[Scott Andrews, Liberal, Avalon, NL]

So you'd look at a criminal offence?

[Gregory J. Levine]

Maybe, yes; I can—

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you.

I now give the floor to Mr. Carmichael, who has seven minutes.

[John Carmichael, Conservative, Don Valley West, ON]

Thank you, Chair.

Thank you to our witnesses.

Maybe I'll start with you, Mr. Levine, and then I'll move to you, Mr. Greene. I'd like to ask you both the same questions.

I guess I'm wrestling with the definition at this point of apparent versus definitive conflict of interest, as currently defined, to the best of my understanding.

When the commissioner is asked to contemplate any type of investigation, launching an investigation into a conflict situation, there's the potential for public or external factors to create a presumption of guilt prior to her conclusions being determined. I wonder if there is a way, from your perspective, that you could advise us: do you see any way to mitigate attacks on reputation for purely partisan purposes?

Mr. Levine, could we start with you on that one? I want to give you first crack here to get your word in edgewise.

[Gregory J. Levine]

Thank you. It is a problem if any of these codes or any of this conflict of interest legislation across the country are used for partisan purposes. I think the commissioner has to have the ability to refuse to investigate things. In most statutes across the country there are sections that allow refusal of an investigation for matters that are trivial or vexatious or frivolous, and I think that's a useful tool.

I am mindful that frivolity, for instance, is in the mind of the beholder. One person's frivolity can be another's great sin or problem, but nonetheless you have an objective person looking at it. So that is a way to deal with that.

[Prof. Ian Greene]

In the first couple of years in the Ontario system, the first commissioner, former Chief Justice Evans, in one of his reports said he didn't like the number of petty complaints that were coming from members on both sides of the legislature. So he recommended that the parties have their own system whereby they go to the whip and the whip decides which allegations really are not trivial and ought to be raised publicly. That system seems to have worked, so that's something that might be tried here as well.

I think Commissioner Dawson has been very good at looking at complaints she gets to make sure they reach a certain threshold. There's a certain amount of information that has to be provided by the complainant before she will investigate, and a number of allegations she has refused to investigate because there was just not enough information. I think that's very helpful too, but I think working through the parties and the whips is a very good system to make sure that just the serious ones get through.

But to me, the most important part is preventive. Let's not talk about what we should do once the cat's out of the bag. Let's try to keep the cat in the bag in the first place and make sure that members understand the rules including if they are amended to include apparent conflict of interest. If every member had to meet with the commissioner or a deputy commissioner, they could ask what an apparent conflict of interest is and how, in their situation, they could avoid that.

[John Carmichael, Conservative, Don Valley West, ON]

I think your position on that is a good one. That, incidentally, is my concern with “apparent”. As soon as you introduce an element of subjectivity, you've opened the door, I think, to the potential for more of the vexatious type of approaches, and we all want to avoid those.

My colleague opposite was addressing the penalties. On the administrative monetary penalties versus something a little more definitive such as apologies and dismissal, he talked about former public office holders. I wonder if, once an individual has left office and still falls within the five-year timeline of responsibility, the fact that the individual may be found in conflict—as my colleague stated—would not create a clear precedent for active public office holders that would be more valuable than going after that former public office holder.

I know we want to have rules and regulations that are administratively manageable, but I'm concerned that if we put it too far out there, we create so much disincentive to participating as a public office holder, let alone what happens after that.... You want to create rules and regulations that are going to apply within the framework of being here.

Would you have a comment on that? Am I off base or on base?

[Prof. Ian Greene]

No, no, I think you're on base.

Would you like Mr. Levine or—

[John Carmichael, Conservative, Don Valley West, ON]

Why don't you go first this time, Mr. Greene?

[Prof. Ian Greene]

Okay. One thing that was recommended by Oliphant is that if people violated the rules and were no longer public office holders, then current MPs and cabinet ministers should not be allowed to arrange for contracts with them. So they're blacklisted, and they have to check with the commissioner to find out who is blacklisted.

I think that makes a lot of sense. It would be an incentive not to do that once you're no longer a public office holder, not to get on that list, and an incentive for the current MPs to find out who these people are.

[John Carmichael, Conservative, Don Valley West, ON]

I don't think you want to be on the list.

[Prof. Ian Greene]

No.

[John Carmichael, Conservative, Don Valley West, ON]

Mr. Levine, do you have any comments or have we covered it?

[Gregory J. Levine]

Yes, I think so. I agree with....