Evidence of meeting #65 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 ministers.
A recording is available from Parliament.
NDP
Charmaine Borg NDP Terrebonne—Blainville, QC
Thank you very much.
In one of your essays, you talked about political or partisan no-go zones, saying that respect for those boundaries was currently on the decline. How do we fix that? Are there certain changes we can make to curtail partisanship, which seems to be on the rise?
Dean, Osgoode Hall Law School, York University
The best solution I can think of is to try to use the principles to find that middle ground. For example, you could say that a minister should never have anything to do with a constituent who is coming before a regulatory or other body. But these are politicians, and the nature of representing a riding and a constituency is that you want to help.
One solution I know that has been tried with some success is one in which the minister can write about his or her personal experience with, let's say, someone seeking a licence, in the CRTC context—not to say “I think they should get the licence”, but “if I have had a positive experience, why shouldn't I be able to share it?”—in a way that then is up to the regulator and that is respectful of the integrity and impartiality of a regulator to make a decision.
When I've been asked whether a minister should write a letter as part of a process, rather than say “never”, which I think would be unduly constraining, I would say that there are contexts in which you can do so and respect the integrity of the process and not suggest that you think there's an outcome that the minister is advocating for. It's the advocacy that is the no-go zone, not the being part of a process or sharing relevant information and so forth.
I think if you take that principled approach, you'll find far more middle ground that in fact will satisfy the legitimate interests of ministers as politicians while reinforcing the integrity and impartiality of these important regulatory or quasi-judicial settings. A no-go zone is important, but it's important to limit it to the areas in which this would actually do damage.
NDP
The Chair NDP Pierre-Luc Dusseault
Ms. Borg, you're out of time.
It is now Mr. Warkentin's turn for five minutes.
Conservative
Chris Warkentin Conservative Peace River, AB
Thank you very much, Mr. Chair.
I appreciate the comments. We've covered off a number of things, Dean Sossin, but one of the things I'd be interested in is your perspective relating to post-employment rules.
One of the things we know is that it's important that there be rules constraining certain people, including public office holders, in what they might do following their public posting. But in terms of cooling-off periods and different things, obviously the Lobbying Act constrains the ability to pursue work-related communication, in terms of whom they can lobby or what they can do on that front. Obviously, there are certain things that can and cannot be done, based on information that was confidential during their period of time as a public office holder.
Are there any things that you can think of that need to be changed within the act as it relates to the post-employment of public office holders?
Dean, Osgoode Hall Law School, York University
It's a real challenge, because I think you could do a real unfairness by preventing a public office holder from effectively being able to have a livelihood. But it's a hugely sensitive area of concern, both temporally—wanting, in other words, to make sure that there is that cooling-off period—and also in an ongoing sense of wanting to make sure you're not trading on access to public information or decision-making in order to gain a private benefit.
The part I'd like to see, and it's not set out as clearly as I think it could be, is an ongoing monitoring, advising, and reporting function, whether for the commissioner or under the lobbying statute in a different way, so that we can actually get much more situational, contextual guidance on the inevitable grey areas as we try to work this through.
I think this is a case in which we're looking for bright lines. The legislation tends to favour bright lines, but bright lines have a way of being unfair to people who end up on either side. Either we're letting things through that in fact are going to jeopardize public confidence or we're stopping people from doing things when in effect there is no threat to public confidence. You've heard this as a bit of a refrain from me, but I much prefer the principled discretion, with an ongoing office holder, commissioner, or other person able to have that jurisdiction, to a series of bright lines that are set out in the act and about which there's no further commentary or guidance.
Conservative
Chris Warkentin Conservative Peace River, AB
It's a difficult thing. On one hand if there are lines and they're bright, and they're clear, and everybody knows what those are, then in seeking post-employment a former public office holder can have clarity as to what the future employer can expect from that person, as well as what the former public office holder would expect, and how he or she would conduct himself or herself in this new role. I'm concerned that what we have in not having absolute clarity is ambiguity, and nobody likes ambiguity. I've seen some former office holders do well in their post-employment ventures, and some who struggle to find a place that fits well. Do you have any comments with regard to that?
I guess the other questions I have that come to my mind often are, what can we do, and to what extent can we control the actions of public office holders after they've left employment, and would those things comply with our charter?
Dean, Osgoode Hall Law School, York University
I think there is actually a way forward. I think you set out the dilemma quite well. The way forward again is looking for the principled middle ground. One that comes up a fair bit in this accountabilities sphere is the idea of advanced judgments. So you say, look, I want to take on this role and can I get an advanced ruling from you the commissioner on whether I'm running afoul of the rules? I get my precision and predictability. The commissioner gets a chance to lay out, again, a principled foundation of what is going to, and not going to, offend the provisions, and then can do better. The commissioner can report in annual reports and otherwise on the aggregate kind of advice that she's giving so that others get the benefit of seeing how these rules are developing.
Without violating confidentiality of an advice-giving, without having to wait until ex-post judgment that you thought you were okay but you weren't, there's a way to give predictability, coherence, and fairness. I know a lot of the former ministers simply go to former ethics commissioners who are now in private practice, get an opinion letter from them on how the legislation would be read in their context, and then they keep that in their back pocket as some kind of insurance for what they're about to embark on.
Why create this facsimile or proxy for something that can be a much more direct relationship with someone who has that statutory mandate acting in a non-partisan sense in the public interest being able to say, here is an advance judgment based on these available facts? Again, if you don't share all the necessary information, and if that information changes, then of course a different outcome may occur. But if you look at these issues.... I had the chance to testify as part of the Mulroney trial, or the Oliphant inquiry, where this was a key issue in much of the discussion. It's hard to think of scenarios in which you can go wrong where you ask for advice, receive it, and rely on it where the advice giver is the statutory office holder with jurisdiction over the act.
NDP
The Chair NDP Pierre-Luc Dusseault
Thank you, Mr. Warkentin.
Thank you, Mr. Sossin, for your answer.
We now move on to Ms. Davies for five minutes.
NDP
Libby Davies NDP Vancouver East, BC
Thank you.
Thank you very much, Dean Sossin, for joining us today. I just want to follow up on a number of points that you've made.
On this issue of advanced judgments, I don't know whether the commissioner in this case would be happy to do that or not. It puts a lot of onus on that person, almost a liability, because you are in effect giving a clearance, but in any event it's a good concept. I wonder if you could give us any information as to where that's actually working so we can take a look at it.
The other question I'd like to get at is, I know that in some of the writing that you've done you've looked at this issue of apparent conflict of interest and I think it's related to this question of advanced judgment as well. I think one of the questions that the committee is facing is whether or not with the omission in the current legislation—or the terms that are used “real, or apparent, or potential” in relation to conflict of interest—there actually is a big gap there. So if you have any opinion or advice on how those should be included, particularly following up from the Oliphant commission, I think it would be very helpful.
February 13th, 2013 / 5:20 p.m.
Dean, Osgoode Hall Law School, York University
Sure.
Advance rulings—we'll start with that—are not uncommon. For example, they're a routine part of how our tax system works. In this field, the Ontario integrity commissioner, for example, would say the most significant part of her work is the advice-giving, which runs the spectrum between someone saying they want to go to an event, here's who's sponsoring it, and asking for advice on whether they should go. Current office holders, in other words, get that kind of advance ruling quite often. Some of the legislation and/or codes of conduct will specify that, when advice is given in that context, the politician or office holder has the right to rely on it. In other words, a different view won't then be taken if a complaint is brought.
It is in a sense like an insurance policy. It does put the commissioner in a position of having to make that call, and it's not always an easy call to make because the glare of public scrutiny afterwards may in fact reveal a different view. Again, the safety valve is based on the information at the time, so it's not open to that minister to be partial in the disclosure, get a favourable ruling, and then feel somehow clear to do something which, if the fullness of it had been revealed, might have led to a different result. So it's only as good as the disclosure and transparency of that.
I actually think it's a much better system. What we don't want is just a system set up to catch people. We want a system that's set up to make people work more effectively in the public interest, so it's probably where I differ from members around that table. This came up, of course, with another integrity commissioner not long ago. If someone hasn't been prosecuting, I'd ask, what have you been doing? Some commissioner who hasn't been prosecuting, but has been engaging in educating politicians and dealing with them on an advisory basis and leading to much better conduct, may be in fact a success story. So it's not, in other words, just the number of complaints and investigations and outcomes by which we should judge the effectiveness of an accountability officer. It's how the culture is changing and whether the public interest is served. That approach to advance rulings and advice-giving is key.
As I was indicating before, I'm a strong proponent of the idea that you can't have a regime dealing with conflicts of interest that doesn't deal with apparent conflicts, and still lead to greater public confidence. In other words, it's not that you can't. We have a statute that says “actual conflicts”, and that clearly is erring on the side of fairness to those caught up in this because the standards of an actual conflict are more precise than the standards of an apparent one. But I think you're losing more in diminishing public confidence than you're gaining in fairness. The balance, I think, can be struck with having apparent conflicts included, but with a reasonableness test so that there is an objective, a check, on either a rogue commissioner who goes off on a political vendetta, or on having too much uncertainty.
Remember, this can all be subject to judicial oversight at the end of the day if someone's receiving a penalty or other jeopardy. The accountability I think is still there, even if you move to apparent conflicts, as I believe the scheme should.
NDP
The Chair NDP Pierre-Luc Dusseault
Thank you, Ms. Davies.
And that ends our time with Mr. Sossin. I want to thank you once again for joining us today and taking the time to contribute to our study.
NDP
The Chair NDP Pierre-Luc Dusseault
It was a pleasure. Thank you.
On that note, fellow members, have a great week in your ridings. We will see each other back here on February 25, and we'll continue with our study then.
(Meeting adjourned)