Evidence of meeting #63 for Access to Information, Privacy and Ethics in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was code.
A video is available from Parliament.
4:40 p.m.
NDP
The Chair NDP Pierre-Luc Dusseault
Thank you for your reply.
I now yield the floor to Ms. Borg, for five minutes.
4:40 p.m.
NDP
Charmaine Borg NDP Terrebonne—Blainville, QC
Thank you very much, Mr. Chair.
I would also like to thank our witnesses today for their presentations and also for their replies to our questions.
My first question is for Ms. Turnbull.
You said that we really need to find a balance between the rules to be followed and the principles. In your opinion, is that balance present in the current act? If that is not the case, what needs to be done to establish that balance?
4:40 p.m.
Associate Professor, Dalhousie University
To me, the legislation that's in place right now and the tone and substance of the recommendations put forward by the commissioner are very rules heavy as compared to principles. It seems to me that even if you look at the members' code, it strikes a more equitable balance between rules and principles than the Conflict of Interest Act does. It seems to me that the Conflict of Interest Act is very focused on enumerating specific areas of wrongdoing.
Most of the discussion from the commissioner is about how to close loopholes, how to address certain things that might not be enumerated now, and taking the threshold for disclosure of gifts from $200 to $30. I don't think a balance is there at all right now. That encourages ministers, and people who are under the legislation, not so much to think about big questions about what it means to be ethical, but to think about very specific cases where they might be outside the rules, and they want to avoid the bad press they'll get if someone finds out.
4:40 p.m.
NDP
Charmaine Borg NDP Terrebonne—Blainville, QC
Thank you very much for that answer.
Correct me if I misunderstood your words, but you suggest that more emphasis should be put on principles. That being so, how do we go about strengthening those principles? How do we promote them? Could this be done by improving the training? Indeed, we heard other witnesses say that the commissioner did not have enough time to sit down with the members to explain the principles and regulations and the rules that have to be followed. Should there be more principles, and should we make sure that they are well respected by the members and ministers?
4:40 p.m.
Associate Professor, Dalhousie University
I've made arguments in the past about how it might be better to focus on education and communication rather than penalization, compliance measures, and that sort of thing. It seems to me that the commissioner has quite a bit on her plate right now, and she'd like to add to the list of things that she can be monitoring.
I don't know what kind of changes would have to happen in order for a real education program to be in place. By education I mean more communication, and having more of a general discussion about what standards you're trying to uphold.
If we get too focused on the rules, it would be easy to lose sight of what the point of all this is in the first place. It might help everyone to keep focused on the overall objectives if there were more of a discussion of principles.
It might also be helpful, as the commissioner herself mentioned, to spend a little more time, maybe in a review of the legislation, on the definitions of conflict of interest, such as what happens in the front end of the bill rather than in the back end.
To change those definitions and to have more going on in the front end, even that conversation would have educational implications.
4:40 p.m.
NDP
Charmaine Borg NDP Terrebonne—Blainville, QC
Mr. Conacher, do you have any comments to make on that?
February 6th, 2013 / 4:40 p.m.
Board Member, Chairperson, Government Ethics Coalition, Democracy Watch
Training is important. There should be training right up front. There is a meeting once a year that everyone, or a member of their staff, has to attend with the commissioner just to update things, but there should be some up-front training.
Principles are fine, but they're so vague that they don't mean anything. No one is following the principles in the MPs' code because it sets impossible standards. They are to maintain the highest ethical standards that will bear the closest public scrutiny, which may not be fulfilled by complying with the law. That is one of the principles. How do you do that? How could everything anyone does bear the closest public scrutiny and go beyond what laws require? Where is the line?
The problem with principles is that they don't draw lines. The two lines that need to be drawn are the apparent conflict of interest rule, and make it clear what that is, and a foreseeable potential conflict of interest rule. Add that in and delete the general application loophole that allows you to take part in discussions when you have a financial interest even in the outcome of the discussion or decision just because it's a general matter that you're dealing with. You shouldn't be allowed to be taking part in even general discussions and decisions if you have a financial interest in them.
Those two should be made rules. The other principles are fine, but they will never draw lines because the words are so vague and general that they're really meaningless. They add up to meaningless standards.
4:45 p.m.
NDP
The Chair NDP Pierre-Luc Dusseault
Thank you, Ms. Borg, your time has expired.
It is now Ms. Davidson's turn; Ms. Davidson, you have five minutes.
4:45 p.m.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
Thank you very much, Mr. Chair.
Thanks to both of our witnesses this afternoon. You've both made very interesting presentations. I think we've heard a lot of valuable information that we can use as we go forward with this review.
There's one thing I wanted to ask each of you, and I think you've both alluded to it slightly.
Mr. Conacher, you alluded to the definition of improper advantage of former office, and Dr. Turnbull, you alluded to some of the definitions.
Are there other definitions in the existing act that we should be looking at changing? Are there some that are too broad or too narrow? Are there some that are not even there?
4:45 p.m.
Associate Professor, Dalhousie University
If I were to emphasize an area to work on, the commissioner talks about the issue of getting gifts and other advantages. She makes the point that gifts $200 and over have to be disclosed. Ministers sometimes make the assumption that as long as the gift is within a certain monetary value range, then it's okay. She points out that this is not the case, that a gift can be improper even if it's of low monetary value.
I get that theoretically, but I'm not really sure what her point is. She says that, but then she doesn't go on to explain why she thinks that. She doesn't give an example of what an inappropriate gift would be, even if it were only $50.
I think there's a problem there in terms of understanding. I think more has to be fleshed out. I think the commissioner is asking for that, but I don't see a lot in terms of an actual recommendation from her, or an actual idea about a gift that would be improper even though it's not worth very much.
I think that has to be fleshed out, because ministers and MPs, people who are under the code, would benefit from more clarity there.
4:45 p.m.
Board Member, Chairperson, Government Ethics Coalition, Democracy Watch
Actually, in that area she's issued a guideline that's multiple pages, very detailed, and gives lots of examples. I think the area of gifts, actually, that guideline, is the most defined line in the act currently, because of this guideline that the commissioner issued several years ago.
The words “improper advantage” need to be defined. No one could be found guilty of violating that rule currently, because as a case involving former cabinet minister Sinclair Stevens proved, the Federal Court ended up ruling and saying that he was found guilty of being in conflict of interest, but the conflict of interest wasn't defined and therefore he wasn't guilty because he didn't know where the line was and how could he know whether he crossed it.
On general application, what is a matter of general application? That has not been defined. I think it means lots of things. Maybe in the commissioner's mind it doesn't mean as much. It's a very important rule in the act in both the MPs' and senators' codes, because it's a huge exemption where it says you can't ever be in a conflict of interest if you're dealing with the matter of general application.
Those would be the two, though.
She's defined what a significant official dealing is in terms of you can't take a job with someone after you leave if you've had significant official dealings with them. She's issued a guideline on that. She's issued a few interpretation bulletins, but the big one is improper advantage, and the other one is general application. Those two should be defined by her in an interpretation bulletin or within the act itself, specifically.
4:50 p.m.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
Okay, thank you.
There's one other thing. I wanted to go back to the post-employment issue. That's probably an area where we need to have some significant better understanding. Do you think that former reporting public office holders should be prohibited from going to work for agents, the non-partisan agents and officers of Parliament?
4:50 p.m.
Board Member, Chairperson, Government Ethics Coalition, Democracy Watch
Going and working...?
4:50 p.m.
Conservative
Patricia Davidson Conservative Sarnia—Lambton, ON
I mean, if they were a reporting public office holder, could they go and work for any of the officers of Parliament?
4:50 p.m.
Board Member, Chairperson, Government Ethics Coalition, Democracy Watch
I don't really see any conflict there. Do you mean right away as opposed to having to sit out for a time?
4:50 p.m.
Board Member, Chairperson, Government Ethics Coalition, Democracy Watch
If they had had significant official dealings with them during their last year of office, which is what the rule is, they wouldn't be able to for one or two years. Otherwise, I don't really see how there would be a conflict with that, when to work with an entity like that.
4:50 p.m.
Associate Professor, Dalhousie University
I can see how it's a different exercise if you were working in a minister's office. Then there would be plenty of opportunities where you might have dealings with, for instance, the Information Commissioner, the Privacy Commissioner. Isn't that what we're talking about?
4:50 p.m.
Associate Professor, Dalhousie University
They're not the same types of dealings that you would have with an organization that might be coming to lobby the minister's office. The relationship between the minister's office and the lobbying commissioner would be administrative, so I don't see a huge problem. At the same time, there might be the perception that if you had a situation develop where a certain commissioner's office has a number of former staffers from a particular political party, there might be some noise made about the complexion of that office and how that might affect what's going on in the office. You can imagine how that would play out politically. There are political implications. That could all blow up, or not. It might be fun.