Thank you.
The first thing I'd say is that I would endorse and echo what Professor Greene has just said to you. His recommendations make abundant sense to me.
Thank you for the chance to speak to you today.
The enactment of the Conflict of Interest Act was an important step in the evolution of an integrity and ethics system. While it's significant and welcome, there are ways in which it could be enhanced. Today I'd like to talk about a few of those ways in which it could be enhanced, including: the insertion of “apparent” conflict of interest; tightening post-employment restrictions; ethics education; and whether or not the enhanced use of administrative monetary penalties recently called for by the commissioner will transform the nature of the legislation, and whether or not that's appropriate.
Before looking at those issues, I'd like to make three general comments. One already has been made by Professor Greene. The first is that the Oliphant commission made several recommendations specifically aimed at the Conflict of Interest Act. To my knowledge, none of them have been implemented. I'll touch on two very briefly, but I think they all should be implemented.
The second general comment I have to make is about the approach of the act to the role of the commissioner. The commissioner is an adviser, a monitor, and an investigator. Unlike most of the provincial, territorial, and municipal commissioners, the commissioner has considerable power to order compliance, but not to penalize, except with administrative monetary penalties.
In her written submission as it appeared on her website, the commissioner now seeks enhanced penalty power, albeit in limited circumstances. As the act now stands, though, she's really more of a specialty ombudsman and is so as well under the members' code. In both contexts, this role is as a specialty ombudsman, similar to most other ethics commissioners in the country. As a general comment, I'd just say that if you're going to transform that role you ought not to do it lightly. I'm going to come back to that in a second.
The third broad observation is that the act deals with much more than conflict of interest. It's called the Conflict of Interest Act, but it deals with behaviours that are beyond conflict of interest: influence of office, misuse of insider information, inappropriate acceptance of gifts, and so on. Conflict of interest, classically defined, is about an opportunity, a potentiality, that is the opportunity or potential to make a decision in one's public role that will further one's private interests.
The act describes ways of avoiding that and so on, but other things, such as improperly influencing an action, for instance, are well beyond conflict of interest. It's misbehaviour. This goes to one of the things the commissioner has called for, and that's an enhancement of the purpose section of the act, which I would support.
I'd also suggest that it would be useful to do as Ontario's Members’ Integrity Act does, which is to have a preamble that clearly states the need for ethical behaviour in government and the aspirations to which the act applies. I don't know if it's necessary to change the name of the act, but I do think that guidance is useful.
I'd like to now comment on specific areas. The first, Professor Greene has already dealt with. The recommendation of the Oliphant commission that “apparent” conflict of interest be adopted and placed in the act I think is very important. I understand that there has been an argument which suggests that because perceptual language occurs in other parts of the Conflict of Interest Act, you need not define apparent conflict of interest. That's not correct, I respectfully submit.
We've had two commissions at the federal level, the Parker commission long ago, and the Oliphant commission, which have dealt with this and have called for the inclusion of this kind of standard. At the municipal level in Ontario now, both the Bellamy and Cunningham commissions have also called for it. I think it's just time to do it.
In terms of post-employment restrictions, again, Professor Greene has discussed this so I won't canvass it, but I think the definition of employment is one area that should be dealt with as Oliphant recommended.
The third area I wanted to talk about, which has been canvassed by Professor Greene much better than I could, is education and training. I would just say that I support the notion that there should be mandatory training. A requirement for public office holders to undertake ethics training and annual review of such training is not unreasonable.
I've dashed along here, but I'd just like to talk about administrative monetary penalties for a second. In general, there are limited consequences for breaching the rules in the act. It does contain administrative monetary penalties. It also contains order powers for the commission to enforce compliance, but it does not have any specified penalties for failure to meet the key substantive rules.
One senses that this is the case for two reasons. The commissioner is to report breaches to the Prime Minister, and it is presumed that the Prime Minister of the day would act in some way to deal with the person who has breached the rules. Also, the reports become public, and the light of day is its own cleanser, if you will.
In her written submission, the commissioner has called for an extended ability to levy administrative monetary penalties in limited circumstances, but also asks you to consider penalties for a more substantive breach. Part of her argument is about whether or not these matters become public.
I respectfully submit that this is a separate issue of how and when and what types of penalties should be in the act. For substantive breaches, I think there should be something beyond limited monetary penalties. It should include a range of possible sanctions. Remember, we're talking about public office holders here, so it could include things ranging from apologies to dismissal. I think it's appropriate that the Prime Minister do that and not the Ethics Commissioner.
Having said all of that, I'll say that if you do want to go to a model whereby the commissioner becomes the enforcer and the commissioner becomes like a tribunal, you will have to enhance the procedural protections in the act for people who will be subject to her penalties.
That's a whirlwind view. I'll stop it there.
Thanks.