Information & Ethics Committee on Feb. 6th, 2013

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Five minutes? Super.

Ms. Turnbull, you sat on the panel of the Oliphant Commission. I would like you to tell us which of that commission's unimplemented recommendations you would like to see.

[Dr. Lori Turnbull]

I'll focus on this issue of the apparent conflict of interest. That is something that other codes do, including some of the provincial codes. Many codes actually outline what a real conflict of interest is, what a potential conflict of interest is, and what an apparent conflict of interest is. The apparent standard is something that... I know what the commissioner is saying when she says it's not actually written in the code, but the code kind of does it anyway, in the sense that the code asks you to use a reasonable person's standard. If you receive a particular gift, how would that strike a reasonable person, or would that create the reasonable assumption that there's something not right going on?

That's fine, but the upshot of using the apparent is that it sort of invites the public office holder to put himself or herself in the position of the public looking at what's going on in a way that's much more explicit, and to think about the appearance of it and about how it is going to look if it lands in the newspaper. How is it going to look during an election campaign? Going back to this principal idea, public office holders might be encouraged to think more broadly about upholding ethical standards and staying away from things that are going to make everybody look bad.

In the 1960s, when Prime Minister Pearson was first dealing with this issue with his cabinet, that was what he was most concerned about. He was much more concerned with the appearance of wrongdoing than he was with what was actually going on. Politically, as you know better than I do, that's your problem, right? When everybody's talking about something as if it's a problem, there's a political imperative to try to manage that. I don't know why you wouldn't put the appearance standard in. I don't see the downside to doing it.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

You think that that would improve the current act.

I am rather favourable to that suggestion, and to including the perception of conflict of interest.

In addition, our experience shows that sometimes, some journalists or media will try to stir up a scandal with three bottle caps and two ballpoint pens, for political reasons. The perception of conflict of interest can also vary considerably according to the ideology, sensibility and partisan interests of members of the public.

How can we include the perception of conflict of interest without this becoming a circus?

[Dr. Lori Turnbull]

I don't know that you can be sure. I think one of the problems with trying to put too much in the code is that it gives us the false impression that you can cover off everything, and you can't. There are going to be times when people accuse people of wrongdoing and it's entirely invented to create some sort of political storm, and there are obvious political reasons for doing that.

I would also say that when it comes to what the public actually takes in and what they do with this kind of information, if a voter gets their political information from a newspaper, and they read about a scandal, and they read about the economy, and they read about health care, and they read about all these different types of things, at the end of the day, the voter has one vote in an election. Whether or not somebody disclosed their information on time or whether or not there was an apparent conflict of interest is only one factor that may or may not affect the decision they make. When it comes to actual accountability for these things, that's the system we're in.

[The Chair, NDP, Pierre-Luc Dusseault]

I am going to have to stop you here.

I yield the floor to Mr. Warkentin.

[Chris Warkentin, Conservative, Peace River, AB]

I'd like to continue on that theme, Ms. Turnbull.

Those of us sitting at this end of the table may not necessarily agree with that last statement. You, as one of our constituents, might say that you don't make your decision based on what's written in the newspaper. Unfortunately, for many of us around this table, we stress a lot about our reputations and about the value we place on them and the integrity that we uphold.

When I look across the House, I see people of integrity in all parties. I don't look across and see corrupt folks. Unfortunately, I'm not sure that's how the newspapers present what happens in Parliament, oftentimes. I believe there needs to be the same protection for politicians that somebody in the medical community might expect or that somebody within certain professions might expect when false allegations come forward.

My concern is that as a politician, the only thing I have that I can take to the people.... I have to fight for my job every four years. I have to re-apply for it. If an activity has been alleged and it is entirely untrue, it may impact upon my ability to continue with my job.

In the case of the medical community, there are significant amounts of protection to ensure that professional credentials are protected until such time as there's a determination as to whether the allegation is true or not.

I wonder whether you have some thoughts with respect to how we might protect people of integrity against whom false allegations have been brought. How might the office undertake its responsibility to maintain integrity and ensure that this happens, but also, as Mr. Conacher has talked about, ensure transparency for the general population as well?

We're caught in a conflict. We want to be transparent with all this process, but we also have to think about protecting the reputations of people whose entire livelihood depends upon their reputations.

[Duff Conacher]

You can't stop false accusations. There is libel law, so that's one protection you have. You can sue someone for libel.

If you have the Ethics Commissioner—

[Chris Warkentin, Conservative, Peace River, AB]

Well, Mr. Conacher, I'll stop you there. People in the House, while in the House, don't have the protection of libel law.

[Duff Conacher]

Yes, but I was just going to say that one of our recommendations is an honesty in politics rule that applies in the House, in Parliament, before parliamentary committees, everywhere. It's one of the biggest things that is needed to clean up this spin-counterspin and these false allegations. Apply it everywhere. It's already in the MPs' code and the accountability guide. It's in the public servants' code. It says you have to act with honesty. That's what you're expected to do under the MPs' code, but it's not an enforceable rule.

[Chris Warkentin, Conservative, Peace River, AB]

Do you think that this office, or under the act the commissioner, should have the ability to hold people to that? Rather than use the courts, should this office also guarantee that?

[Duff Conacher]

The commissioner is an administrative tribunal. She's a quasi-judicial office already. She is judging. She is enforcing the law. She is finding people in violation.

If you have an apparent conflict of interest standard, you must either have a regulation that says what it means, or she has to issue an interpretation bulletin, or no one should go forward. It wouldn't be fair to have an appearance standard or a potential conflict of interest standard without defining what it means, because so many situations are there.

Right now you can't challenge the Ethics Commissioner in court on any of her rulings, even if she makes an error of fact or of law; no one is allowed to challenge her. That has to be eliminated. Everyone should be able to appeal to the courts on her rulings, especially if you were to bring in more rules, such as an apparent standard. If you were to bring in penalties, you need all those protections of due process that Mr. Calkins was talking about, so that you could appeal her rulings in court if you disagreed with them.

[Chris Warkentin, Conservative, Peace River, AB]

The difficulty with that for politicians is that if it goes to the court, you've lost in the court of public opinion already. The damage is done; the allegation has landed. It's well entrenched by the time it's in the courts.

I'm talking about allegations that are false and that can be determined to be false even at the commissioner's office in the initial process. There already is a provision to ensure that they maintain confidentiality until such time as it's determined whether or not there is a conflict, or if an investigation has revealed that some kind of act has been undertaken that is unprofessional.

[Duff Conacher]

No, and to be very clear, we're not calling for investigations to be made public, just the final ruling. If the final ruling is that the person was not guilty and the complaint was not filed in a public way, then the final ruling doesn't have to name who was complained about, but just give a summary so that you know the Ethics Commissioner did look into a case.

[Chris Warkentin, Conservative, Peace River, AB]

You believe that it should be held absolutely confidential until such time as the determination has been made.

[Duff Conacher]

Yes, that's fine. I have no problem with conducting these inquiries and examinations privately, but there has to be a ruling at the end. There are 83 situations that were complained about or that the Ethics Commissioner became aware of in the last five years, and we don't know what she did with any of them or why, except that she rejected them. We don't know whether she's done her job, as a result.

Officers of Parliament are watchdogs. They're czars in a way, and they can't be unaccountable czars. They have to be accountable still, to show that they're actually doing what they're doing. That's why we need more transparency—

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you for—

[Duff Conacher]

—but again, I'm not talking about naming anybody, if they're found not guilty.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you for your answer. Unfortunately, your time is up.

We have another item on the agenda today, which will be discussed in camera.

I want to thank the witnesses for being here with us today to discuss these matters.

Accordingly, I am going to suspend the hearing for a few minutes to give you a chance to leave. We will come back in a few minutes to resume our hearing in camera.

[Proceedings continue in camera]