Thank you very much for having me and for accommodating the fact that I can't be there in person, which I would have very much enjoyed.
I probably won't need the 10 minutes, and I want to make sure there's as much time for questions and answers as need be for me to be helpful. My experience with this field, whether municipally, provincially, or federally, has convinced me of just a couple of guiding principles that I hope will be helpful in this review process.
One is the challenge of granularity. In other words, there is the temptation to lay out with increasing specificity what constitutes a conflict, because people have to govern themselves and want to know with as much clarity as possible the rules they're going to be falling under.
But if you set out as some of the sections in the act do—such as section 14, for example, on contracting, which sets out spouse or parent or child—invariably, I think you're going to lose sight of the guiding principle, which is not advancing a private interest through the exercise of a public power. Why, for example, does that not apply with equal force to a brother or to a cousin or to a niece? Wherever you try to draw the line, I think, invariably, you're going to leave out things that are, in the public's eye, in the same category of private interest.
The overall structure of the act is very value-based and is very much guiding itself by the desire to enhance public confidence, and I hope this review validates that approach, because I've seen in municipal and provincial and other statutes the attempt to become more and more granular lead to less and less public confidence at the end of the day. That's one comment as a general matter.
The other comment is related to that. If there's one criticism of the act that I've heard within the community of other integrity commissioners or other people who practise and observe this area of law and policy, it's the line between actual conflicts as our concern and the apprehension of conflicts or the perception of conflicts. I think actual conflicts are remarkably difficult to establish in many cases whereas the perception is often much clearer.
I think, increasingly, what people are concerned with is not entering into a course of action that's going to give rise, in a reasonable observer, to the perception of a conflict. That's certainly a legal standard well known in administrative law around decision-making. Increasingly, in the new municipal statutes that I'm aware of, for example, the tendency is to embrace that idea of perception being as potentially damaging as the actual conflict. Again, I think it's a point of discussion that I know you're already considering and that those who designed the statute already considered, but it's alive in the community of accountability officers, so I wanted to mention that.
The third point is about the powers of the commissioner. I know there's been media discussion of whether additional financial penalties are necessary. We're had an interesting case in the City of Toronto as I'm sure everyone around the table knows in which a court found our integrity commissioner didn't have the authority to ask the mayor to pay back certain funds that in her judgment were paid in contravention of the code of conduct.
Again, that is puzzling in terms of public confidence. If the issue is that you received a benefit, why wouldn't it make sense, in a restitution sense, to have the remedy be to pay that money back or to pay that money into the city coffers so there's no individual benefit?
I guess the third point would be to not necessarily comment on the specifics of what monetary penalty would be appropriate. The commissioner has a strong point in saying it's unusual to have monetary penalties for breaches of the process but not for substantive breaches. But, again, I wouldn't want to see that leading to granularity so that this penalty of up to this particular amount in this particular case would be appropriate.
I think the value-based approach—of saying the remedies necessary to ensure public confidence ought to be the remedies the commissioner has at her disposal—is going to fulfill the objects of the statute much better than an attempt to itemize with exact precision the nature of which penalty ought to attach to which kind of conduct.
Those are the three areas that are very much top of mind for me and, in conversations about the act in this review, are the ones that come up around this particular statute. This statute was welcomed when it came into force and has been a qualified success story in terms of raising the quality of conduct and raising the credibility of review. But qualified successes, obviously, are double-edged swords and there are clearly elements of a work in progress yet to be completed as well.
I'd welcome any discussion you wish to have or questions that I might be helpful in answering.
Thanks for the opportunity to share those opening thoughts.