Information & Ethics Committee on Feb. 4th, 2013

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

The idea of going to some kind of tribunal is excessive, to me, but when rules are breached, I never, ever hear someone taking responsibility.

For example, the finance minister breached section 9 of the Conflict of Interest Act. He did. The commissioner found that. Yet day after day in the House, we see them trying to dodge around it, that, well, he was just acting like a backbencher. Well, he wasn't.

Are we to expect that they're going to take responsibility, or...? It seems to me the commissioner is frustrated. She's saying she's not getting compliance. Nobody fesses up when they do something. It just becomes a political game.

So if she did it, then it wouldn't be a political issue. She would make the decision—whether it's a public apology, whether it's restitution, whether it's a financial implication. Otherwise, I mean, within the context of the Parliament that we live in, do you really think we're going to be able to work this out?

[Gregory J. Levine]

There is a multitude of questions there.

I'd just like to say that one thing you're clearly accepting is the need to have a range of sanctions. It seems to me that if you leave it at administrative monetary penalities, that trivializes the offence: “Okay, I'll pay $500. But I'll influence this action over here, so who cares? It's just the cost of doing business.” That really trivializes the act, so I don't think you should do that.

I can't speak to the mood of Parliament. Sure I watch the news, and sure, I actually live in hope that our legislators will be responsible to each other.

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

Thank you.

I'd like to ask you about elements in terms of influence. Right now it's possible to lobby through sponsored trips. That's perfectly legal. We all get invited. You could get flown around the world by somebody on their dime, and it's perfectly legal as long as you write it down.

The question is in terms of the bigger issues, where people could actually be influenced, and the more trivial ones, where someone makes a mistake because someone offers to put something in their name and they think, “Wow. Great. I'm helping a girls' school.” Then they get slapped for it because it's beyond the line. But someone else could get flown around the world for two weeks from some corporate interest or from some foreign power.

Do you think we need to look at the rules to assess things like lobbying, like sponsored flights? Do you think they have been slipping through?

[Gregory J. Levine]

Yes, I do, actually. I think that's a good point. I think you need to look at the range of potential influences and not accept certain gifts as acceptable. And on the whole idea of...I understand that there's a fact-finding element to accepting trips and so on, but I find that troubling, actually, because that's potentially influencing.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you.

Your time has expired, Mr. Angus.

I now give the floor to Mrs. Davidson, who has seven minutes.

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

Thank you very much, Mr. Chair.

Thank you, gentlemen, for being with us this afternoon. This is very interesting, and I think it's going to be very beneficial for us.

I want to start with you, Professor Greene, if I could, please. You made a couple of comments about definitions. You talked about employment being one of them that you thought perhaps should be....I'm not sure if you said it should be broadened or changed, but you thought that at any rate there should be some alterations. Could you talk a little more about that, please, and tell us if you feel that there are other definitions that are too broad as they are in the act now or maybe too narrow?

[Prof. Ian Greene]

Yes. This isn't actually my recommendation. It comes from Oliphant. It deals with the definition of employment and the Conflict of Interest Act. There's no clear definition right now. In my brief, if you have a copy of it there, I've quoted from the Oliphant commission.

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

Apparently it's being translated, so we will get it.

[Prof. Ian Greene]

You will get that there. I've quoted from the Oliphant commission in terms of what they think the definition should be.

Just so it's clear for everybody, another part is that post-employment provisions should clearly refer to work done in Canada or anywhere else, not just in Canada.

Also, in terms of enforcement, once again, they've recommended that failure to meet disclosure obligations should not just be punishable by a fine but should be an offence. They went into some detail as to whether it should be a criminal or non-criminal offence, and they settled on non-criminal because the prosecution would be more straightforward.

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

One of the words that jumps out at me when I'm reading the act is “friend”.

Are you comfortable with the way it's defined? Or do you think that needs a better definition or a clarification of some sort?

[Prof. Ian Greene]

If you look at the decisions of the various ethics commissioners across the country, plus the annual reports of the ethics commissioners, which really summarize in such a way so as not to violate confidences, you'll get, from the advice they're giving to people who come to them for advice, I think a pretty good idea of what is meant by “friend”. It is someone who is more than an acquaintance, someone who you'd like to assist in terms of “you scratch my back, I'll scratch yours”. I think it would be kind of dangerous to go into a clearer definition of what a friend is, because it could lead to unnecessary loopholes.

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

Okay.

One of the other things you talked about, Professor Greene, was the requirement to meet in person annually. I think there's probably some merit to that. I think that probably if we have the opportunity to sit down and discuss in person, it's easier or maybe better than the way we're handling it now, with a written declaration, and then if there's an issue there's a phone call or whatever it may be. Did you want to talk more about that? Is that a common practice in many places? You talked about Ontario.

[Prof. Ian Greene]

In terms of the provinces and territories, there are eight jurisdictions now that do require these meetings. There may be more, but as of a year or two ago, there were eight. There are two reasons this was not made part of the system for the House of Commons and the cabinet. You have 308 members, and you are going to have more in the future. That's three times as big as the Ontario legislature. How do you have these meetings within 60 days? It's a huge load. Then, the other reason is that the commissioner is responsible for about 3,500 other public office holders outside of Parliament. That's a huge scope of responsibility that most other commissioners don't have.

How do you deal with this? What occurs to me is that you could have the commissioner, who would meet personally with all of the cabinet ministers, and two deputy commissioners, who could be staff who are currently in the office, who would meet with the other MPs. Then there could be an assistant commissioner to handle all of the public office holders outside of Parliament. There are ways of doing it, but I think those are the reasons why it didn't get into the system in the first place.

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

I think you both referred to broadening conflict of interest to take in apparent conflict of interest. Could you explain that a little more clearly, please? What you do mean by apparent conflict—apparent to whom?

[Prof. Ian Greene]

We mean apparent to the reasonable person informed of all the relevant facts. That's a legal concept. Basically it means that people, under the act, need to take additional precautions to ensure that the reasonable person doesn't perceive them to be in a conflict of interest situation. For example, a number of years ago in British Columbia, the minister of municipal affairs was about to approve some housing projects that were actually controlled by one of his friends. The way the rules were written, it was okay for him to do that because he wasn't personally gaining anything, but anyone else would say that really doesn't look good whatsoever. That's why in British Columbia they have that provision, and it has worked. The commissioner is there to advise how to avoid apparent conflicts of interest. If you get into an apparent conflict of interest, obviously the penalty wouldn't be as great as it would be for a real conflict of interest. It is good to have that extra level. It gives the whole system more credibility.

Mr. Levine may have some comments as well.

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

I would like to hear from Mr. Levine if I could, please. You also made the comment that if we were going to transform the role of the commissioner that we should not do it lightly. Could you comment on that as well?

[Gregory J. Levine]

I don't have a lot to add on apparent conflicts of interest. The way Justice Oliphant defined it was that apparent conflicts of interest are understood to exist if there is a reasonable perception, which a reasonably well-informed person could properly have, that a public office holder's ability to exercise an official power or perform an official duty or function will be or must have been affected by his personal interest. I have it in my notes as well, which hopefully you will get.

Ian Greene's description of how that works in the municipal affairs case that he described is correct.

You asked about what would happen if you switched the model.

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

It was about transforming the role.

[Gregory J. Levine]

My concern is that you've essentially set up a system in which somebody monitors and investigates and then reports to somebody else, either to the House, the Prime Minister, the public, or somebody, and also has an advisory role. That is essentially what I would call a specialty ombudsman kind of role. Ombudsmen typically investigate and then try to persuade whoever it is they're reporting about to make a change. They don't usually have order power. They don't have the power to levy fines and penalties. It's true that the Conflict of Interest Act has created a kind of hybrid, because in this you do have a commissioner who can levy some penalties for some circumstances.

But I think if you go the full route and if you say the commissioner can now levy significant penalties in relation to substantive breaches of the rules, you're going to need to set up a system that allows greater protection of the person's rights about whom the breach has been alleged and found to have occurred. You may see us go down the road that the American jurisdictions have gone down, which is to create essentially ethics commissions that are forms of administrative tribunals only they're more powerful than the average administrative tribunal. They can order fines and in some cases order people into jail.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you. I am going to have to stop you here, as you have gone over your time quite a bit.

Perhaps you could come back to that question during another round.

Mr. Andrews, you have the floor.

[Scott Andrews, Liberal, Avalon, NL]

Thank you, Mr. Chair.

Thank you, gentlemen, for coming in.

I want to go back to Ms. Davidson's question about the Oliphant commission and about changing the definition of conflict of interest.

Did the Oliphant commission recommend only those two changes of “apparent” and “potential” in relation to the conflict of interest definition or did it also define any others, Mr. Greene?

[Prof. Ian Greene]

There were a number of recommendations, about 20 of them that were spread across, recommendations to this committee, to the Prime Minister's office, and to the commissioner's office.

[Scott Andrews, Liberal, Avalon, NL]

I mean just in relation to the definition of conflict of interest.

[Prof. Ian Greene]

In terms of the definition of conflict of interest, it is to broaden it to include apparent conflict of interest, because that was the one recommendation.

[Scott Andrews, Liberal, Avalon, NL]

The commissioner is recommending that the definition not be changed, because the “apparent” and “potential” are implicitly included in other aspects of the act.