Information & Ethics Committee on Feb. 13th, 2013

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you, Mr. Carmichael.

Mr. Andrews now has seven minutes.

[Scott Andrews, Liberal, Avalon, NL]

Mr. Wild, thank you for coming. I have three lines of questioning.

You talk about the five-year post-employment prohibition and how that actually works if it's the five-year under the Lobbying Act or the year under the Conflict of Interest Act. Yet, people who don't obey get written up; that's the only sanction they get. They get a bad name and they get an article in the newspaper for one day. Then they get to carry on with their lives and continue to do what they're doing. So there's really no incentive to pay attention to the rules.

If you don't put in a monetary fine of some sort, how do you chastise people for not obeying their post-employment obligations?

[Joe Wild]

I think there is an important distinction to be drawn between the prohibition on lobbying under the Lobbying Act, which actually has a criminal sanction regime sitting behind it versus the more generic post-employment regime that's under the Conflict of Interest Act.

With respect to the Lobbying Act, there are a couple of things in there beyond the criminal sanction. There is the report to Parliament part which, for a lobbyist, I would think actually carries a fair bit of impact. If you have been publicly outed as having violated the Lobbying Act, I don't know how you could continue to necessarily have a livelihood that's based on lobbying. My guess is that most people would not want to use a lobbyist who actually is being seized—

[Scott Andrews, Liberal, Avalon, NL]

But under the Conflict of Interest Act then, the one-year prohibition of not going out in the field for which you were employed by government....It's clear, and again, I have said it before, Loyola Sullivan, was in clear breach of it. He carries on as normal. He had a one-day news article and he carries on.

[Joe Wild]

I can't speak to any specifics of that specific case. I'm not aware of the details of it.

There are always choices to be made about how to build these regimes. This particular regime is built on a principle of both self-reporting and self-regulation by the individual public office holders. It depends on the nature of the post-employment breach, but in addition to the naming and shaming around that, the commissioner can also issue an order that public office holders are not to have dealings with the individual who has breached the post-employment regime.

The idea is that you can turn off, if you will, the kind of government side of the tap in that relationship. That doesn't necessarily address all aspects of potential post-employment violations, but there are some measures there that I guess would help protect or ensure that there's no improper flow of information between the government and the individual who may be violating the post-employment provisions.

[Scott Andrews, Liberal, Avalon, NL]

Also, you mentioned that the acts are not fully aligned and they're administered by different commissioners. Do you see this as a problem? Should we try to align the pieces of legislation or is it fine under each commissioner?

[Joe Wild]

This is an issue that came up when the Lobbying Act went through its five-year review. It was this committee, I guess, that looked at that, and the report it issued recommended that this should be looked at in terms of harmonizing that post-employment regime.

I think that is something that, again, probably merits good examination by the committee. The government was clear in its response to the prior committee report under the Lobbying Act, that it would be interested in hearing from this committee on this with respect to this act. Once it sees the views of this committee on the Conflict of Interest Act angle of it, I think there's interest in seeing whether or not that's something worth doing.

I think it's recognized that there are issues with having the two regimes the way they are and that it's creating some confusion. There may be issues around whether or not the levels of sanction are proportionate. Sorry, I didn't mean sanctions; I meant to say the amount of the time during which the prohibitions apply, the five years versus the one or two years under the Conflict of Interest Act, depending on whether you're a minister or a different type of public office holder.

[Scott Andrews, Liberal, Avalon, NL]

You also talked about the broader regime and the “Accountable Government: A Guide for Ministers and Ministers of State”. How exactly does that guide get presented to a minister or a minister of state? Who sort of says, “You're a minister now. Here is this guide. You must apply these guidelines.” Do they have to sign it? Do they read it?

Who administers that in the PCO or the PMO?

[Joe Wild]

My group is responsible for providing advice to the Prime Minister. It's very much a Prime Minister's publication. Really, since the time of Prime Minister Trudeau there has been some form of accountable government. Since the time of Prime Minister Chrétien these have been made public.

That document is always distributed to any new minister, or any time you have a new ministry forming after an election, so it's part of the package of material that is provided to an incoming minister. In addition, whenever there is a transition—after an election and you're restarting government—it's usually noted at the first cabinet meeting. There is some review, a reminder of what the requirements are under accountable government.

[Scott Andrews, Liberal, Avalon, NL]

But they are just guidelines. They are just like, “These are the things we think you should do.”

I have actually read the guide, and one of the things that amazes me the most about is that the guide says that ministers must answer questions in the House of Commons to the best of their ability and truthfully and to the subject matter. They don't seem to pay attention to that guideline very much when it comes to questioning in the House of Commons.

[Joe Wild]

All I can say about accountable government is that these are the Prime Minister's expectations of the ministry. It's ultimately the Prime Minister who judges whether or not conduct is sufficient under those parameters for a minister to continue or not in the position they are in.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you, Mr. Andrews.

It is now over to Mr. Warkentin.

[Chris Warkentin, Conservative, Peace River, AB]

Thank you, Mr. Chair.

Thank you, Mr. Wild, for being with us this afternoon.

I've said it before, and I guess I'll get your perspective on it. It seems to me the one thing that members of Parliament have—maybe the only thing members of Parliament have—to remain in their jobs is their reputations. Obviously we have an act that is supposed to protect people from being falsely accused of having done something.

There are some procedural safeguards within the system to ensure that those people who have had an allegation brought against them have some protection for their reputation.

I'm wondering if you view that the appropriate safeguards are in place, or if you believe that there are some gaps or potential gaps within the system that need to be considered as we review this act.

[Joe Wild]

The act certainly places a number of requirements on the commissioner. For example, under sections 44 and 45, the commissioner has the authority to investigate and report on alleged breaches, whether in response to a complaint made by a parliamentarian or self-initiated.

Then section 46 says that public office holders are to be afforded the opportunity to present their views before a report that could impugn their reputation if made public. So there is a safeguard in that sense in that before a report is issued under an investigation, whether self-initiated or in response to a complaint, the public office holder is provided the opportunity to respond or to provide their views to the commissioner.

I would say that's a fairly basic principle of procedural fairness. You have a similar type of protection with respect to the levying of administrative monetary penalties. Again, before a penalty can be levied, the commissioner has to offer an opportunity to the public office holder to provide a response.

In addition, there are confidentiality requirements in the act that seek to avoid unfair or premature damage to reputations that could result during investigations when allegations remain unproven. Again, there is that whole idiom of innocent until proven guilty. The act is very much built along those lines so that the commissioner does have a general confidentiality requirement that prevents her from disclosing information prior to issuing a report. As well, the parliamentarians who provide the commissioner with allegations they've received from the public to the effect that a public office holder has violated the act are supposed to keep that information confidential until the commissioner has issued a report.

[Chris Warkentin, Conservative, Peace River, AB]

That's the one that doesn't seem to be followed right now. It seems that any allegation that's brought to the commissioner's attention is immediately made public, or in some cases made public before the complaint is brought forward. The commissioner talked about her frustration with regard to that.

[Joe Wild]

I certainly heard the commissioner's testimony on that point, and I think that goes to the heart of the recommendations she's making about wanting to be able to have the discretion to make some information public, when those kinds of disclosures happen, in order to either correct misinformation in the allegation or otherwise try to at least keep the public record somewhat straight on what's going on. That's another area about which we're interested in hearing the committee's views as to whether or not there's something inappropriate there.

The other area that probably bears some examination is the commissioner's use of compliance orders under section 30 of the act. Generally speaking, that whole area was intended to be forward-looking, in that compliance orders were meant to be about the things you need to do to avoid putting yourself into a conflict situation.

We've had recent examples of compliance orders that actually draw conclusions on breaches under the act. I don't want to suggest there's anything necessarily untoward around that. I just think that when we're doing our review of the act, we should try to figure out whether or not there is proper procedural fairness balance in how the compliance order is being used under those scenarios. Again, that may be something the committee wants to look at, just to make sure we have the basics of procedural fairness in place for anything that's going to be a conclusion of fault or blame under the act.

[Chris Warkentin, Conservative, Peace River, AB]

We did ask the commissioner, and I think we got her view on it, but is it your view that there should be some type of penalty for people who break the provision of confidentiality when they bring an allegation forward?

[Joe Wild]

That's a difficult question. Different ways of looking at that have been looked at. I'm not aware of a jurisdiction that has put something in place around this. It may be that ultimately it is something that should be put back into the hands of the Speaker, if we're talking about the conduct of members of Parliament and senators. Maybe it should be something that the Speaker of either house should be dealing with if that occurs. It's complicated to put a commissioner into the middle of that kind of fray, but, again, those are areas about which we look forward to hearing the committee's views.

[Chris Warkentin, Conservative, Peace River, AB]

Do I have some time?

[The Chair, NDP, Pierre-Luc Dusseault]

Yes, you have one minute.

[Chris Warkentin, Conservative, Peace River, AB]

In respect of the definition of “friend” within the act, the commissioner has a definition that she has used. I'm not sure it is described within the act, what “friend” means. What's your view of the word? Should there be some additional definitions within the act? Are you comfortable with what it is? This commissioner has interpreted it one way. Is there a chance it would be interpreted a different way by a different commissioner?

[Joe Wild]

Certainly, there's always a chance that a different commissioner would interpret something differently. We would assume, though, that a specific guidance from a commissioner would set a bit of a foundation, and you wouldn't expect that to vary too much in the future. I think that the interpretation the commissioner has given to “friend” is consistent with what we see as the use of “friend” in other contexts where conduct is being regulated. There's nothing in the way she has come at the definition that would be different from what we see in the notions of other professional bodies that have codes of conduct of a similar nature.

While it's true that the act doesn't define “friend”, we think the commissioner's guidance has been sufficient to allow most public office holders to understand where the lines are in the act. The commissioner's guidance for us appears to be consistent with the sources that we would look to, were we to try to create a definition for “friend”.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you, Mr. Warkentin.

Now we begin the five-minute question round.

Ms. Borg, it's your turn.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you, Mr. Chair. Thank you to the witnesses for joining us today.

Mr. Wild, you said that you give the Prime Minister and ministers a guide that explains the type of fundraising activities they can take part in, as well as the precautions they should take.

The commissioner called for stricter fundraising rules for ministers and parliamentary secretaries. Do you agree with that recommendation? Using the ministers' guide as a model, could you suggest some more tangible steps we could take?

[Joe Wild]

I haven't thought about that particular area to any great degree, so I don't have a particular view on the commissioner's recommendation. As with anything else, we await the committee's views on that recommendation.