Information & Ethics Committee on Feb. 13th, 2013

[John Carmichael, Conservative, Don Valley West, ON]

Thank you, Mr. Chair.

Thank you, Dean Sossin.

Clearly, the issue of partisanship is a two-way street. I don't think anybody around this table today would disagree that we all want an act that is fair and balanced for everybody, through which it governs us.

When the commissioner is asked to contemplate launching an investigation, though, there is the potential for public external factors to create a presumption of guilt prior to her conclusions being made known. This gets back to the partisanship. My concern is reputational damage before that is completed. I want to make sure we have a fair solution to this. I wonder if you see any way to mitigate attacks on reputation for purely partisan purposes.

[Dr. Lorne Sossin]

I think this is an unfortunate but necessary reality to confront. I'm not sure that raising the stakes of monetary penalties against potential complainants is a sensible way to do this, but a balanced middle ground is having a measure of transparency where an ethics commissioner can exercise some judgment on disclosing, for example, the fact of an investigation, that it hasn't been complete, that there is no finding until that investigation is complete, and that it would be imprudent to comment further on specific allegations or evidence.

I think, ultimately, if there is someone who is vexatious, who brings complaint after complaint, or brings a complaint and tries to exploit it in the media, that it can be considered by the Ethics Commissioner as part of an overall discretion to ensure the integrity of her process. There should be a full panoply of measures at her disposal to ensure that her office is not used for improper partisan purposes.

There are things that can be done that are measured and balanced, but, again, you have to start from the proposition that this commissioner has to be above the fray, and has to be seen to be above the fray. If the commissioner doesn't have that credibility, doesn't have that confidence, then no provision in the statute and no amount of discretion or remedial sanction is going to make any difference. That has to be the point of departure.

[John Carmichael, Conservative, Don Valley West, ON]

I totally agree with you. I think the issue is one of a fair and balanced approach to managing the process, and I don't envy the commissioner her responsibility for finding a way to do just that.

It was interesting; the previous witness talked about—and you mentioned—the monetary penalties. We asked him about substantive administrative monetary penalties, which is one of the recommendations that the commissioner has put forth, and he suggested that the introduction of those penalties would substantively alter the act. The question becomes—while, the act, for what it was intended to accomplish, is right—are we flirting with something that's going to put us offside in trying to maintain a good solution to this act, as we try to refine it after this period of time?

[Dr. Lorne Sossin]

I think there is some risk in the sense that the more jeopardy you add, whether monetary policy or other kinds of sanctions or discretion around remedies, the more someone who's subject to this can legitimately say, “I deserve more process. I deserve more of a chance to be heard.” It becomes a much more legalized process the more you raise the stakes, as opposed to, for example, simply a reporting remedy, to say there's been breach, and leave it to either Parliament or some other process to decide on a remedy. Then, in fact, the powers of that commissioner can be more free-ranging, because there is less at stake. In other words, it's not that you can simply change the remedies without changing the other character.

But, again, I come back to your evocation of balance. I think to give the commissioner discretion to consider both the fairness of any process to the subject minister and a range of remedies appropriate to both deter the conduct and address it...so it's the classic example, as I said, from the city, of not having the ability to order restitution. Again, I'm not commenting on whether I agree with the court or whether they got the statute right, but as a proposition, it seems puzzling that you would have a conflict of interest or code of conduct that would not have the ability, for example, for a commissioner to order an amount of money repaid.

It's different when you're looking at monetary sanctions and how significant they should be for conduct. I don't think we want to get in a world in which that becomes the story: it's about the money. What we keep the narrative around is: what is necessary for the commissioner to be able to be effective in her role and enhance public confidence? That, to me, is more important than any kind of “gotcha” moment that anyone would be subject to.

So the penalties, and the commissioner's view on them, are sound, but I would worry if that became the distraction from the broader purposes at which the act is aiming.

[John Carmichael, Conservative, Don Valley West, ON]

How's my time? Do I have a few more minutes?

[The Chair, NDP, Pierre-Luc Dusseault]

You have one minute.

[John Carmichael, Conservative, Don Valley West, ON]

One minute, so I'll try to be brief.

In your opening remarks you talked about actual versus perceived conflict of interest. I wonder if you could talk about how you differentiate that and just go a little deeper on that topic.

[Dr. Lorne Sossin]

Sure, and it won't take long. We have considerable jurisprudence on this point through administrative law's “reasonable apprehension of bias” test, which is used by administrative decision-makers and regulators, by quasi-judicial and policy-based entities. So we have a lot of basis to say when, in the eyes of a reasonable person, there is the perception of a lack of impartiality.

That's what I think the conflict of interest provisions are getting at, where there is a possibility that a private interest has undermined public confidence in the exercise of public authority. For the same reason, in that legal standard we don't say you have to prove bias. We say it would be too onerous, too unpredictable to actually prove what's in the heart and mind of a person. So the reasonable apprehension, the mix of that objective standard, has to be a reasonable observer's view, not a partisan observer's view. This is a check on its being abused.

If we have confidence in the commissioner, I believe that an apprehension, a perception standard, can be added in a way that enhances public confidence but doesn't undermine fairness.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you, Mr. Carmichael.

Now it's Mr. Andrews' turn. You have seven minutes.

[Scott Andrews, Liberal, Avalon, NL]

Thank you and welcome, Dean Sossin.

Early on in your statement you talked about knowing where to draw the line on how to apply the act when it comes to family members, your spouse, your cousins, your sisters and brothers. You made a comment that the public believes it knows where that line is. Could you explain to me where that line is in the public's opinion, or in your opinion, and how far down the family tree you have to go?

[Dr. Lorne Sossin]

I'm glad you asked that question. When I say the public knows, what I mean is the distinction between a private interest and a legitimate public authority is pretty clear to people. For example, it may be the spouse, the sibling, or a whole bunch of proxies where we would assume you're going to be affected by your child's interest.

But we know in particular situations it can be the good friend you've known since grade school. It can be the person you have a crush on and are trying to impress by wielding your authority. Why would we care about the family relationship and not the situational context in which it may be quite a distant relative? In that context it's clear, based on the information and evidence provided, that it had a material bearing on the exercise of a public authority. That to me is the issue. The act cares about conflicts.

To reduce it to this idea, that as long as I'm only biased in favour of my nephew or I'm only interested in the private relationship of a former roommate, somehow it's legitimate. To think that somehow it's okay to compromise the integrity of a public authority, as long as it's this private interest and not that one, creates cynicism and a sense of rule-bound seeking of loopholes. It just doesn't resonate with anyone's lived experience, right?

Everyone in their own life knows when they have been affected by a personal relationship. It's not usually mysterious. What it needs to be is evidence-based—it can't just be the allegation or the fact of prior association. That's what the commissioner's for: providing an objective, non-partisan, evidence-based review that's much more reliable than we would get by confining ourselves to categories.

In the City of Mississauga inquiry, you had a child of the mayor affected. At first glance, that seems to be a no-brainer. But leaving aside the specifics of that case, which we had a whole public inquiry about, we have to ask: when your child's in his fifties and you're in your eighties or nineties, at what point does it stop having the same impact as when your child is 15 or 21? So context matters much more than status, and that's the point I was trying to convey.

[Scott Andrews, Liberal, Avalon, NL]

Okay, how do you put the words “in context” into legislation without specifying who these individuals are?

[Dr. Lorne Sossin]

I think the act in fact does that. Section 4, for example, refers to private interests and the public authority. It's simply leaving language that is instructive and value-based for the commissioner to interpret and apply, potentially using guidelines or scenario-based advice.

I'm convinced that the commissioner can do this and that it's much better to do this than to itemize nieces, but not nephews, or second cousins, but not third. The challenge is transparency for the people who are going to be governed by this. A minister has the right to know, when she's about to enter into some undertaking or transaction, whether she's caught by this or not.

So having an advice-giving function, having scenarios in which we can discern the commissioner's thinking on the bounds of private interest, is undoubtedly important. The legislation builds in common-sense exceptions. It's okay, for example, if something is going to benefit a whole region or all taxpayers or all users of public transit, while at the same time affecting you in a private sense.

[Scott Andrews, Liberal, Avalon, NL]

Okay, let me take it to this extension, and I want your opinion.

The commissioner is recommending that we move the gifts category down to $35. Our previous witness mentioned to the committee that this gift also applies to our spouses, if they're given a gift in their line of work.

Where does this stop? My wife's a teacher and every Christmas kids give her $35 worth of Tim Hortons money. Do I now have to report my wife's gifts?

[Dr. Lorne Sossin]

I take a different view from the commissioner on this. I have a lot of respect for her and for others in the field. For example, David Mullen is a colleague in this field, and we both served as integrity commissioner for the city at different periods. We take a different view. His view is that no gift should be under the radar.

Commissioner Dawson has said that the radar should reach deeper than it does.

I'm comfortable with a fairly healthy de minimis line because I don't think the public is concerned about the nickel-and-dime stuff. The example I used to use is that city councillors would complaint that they wanted to give out Marlies tickets, and they heard the integrity commissioner wouldn't let them go to the neighbourhood Boys and Girls Club to give out Marlies tickets because it was a gift they were dispensing or had received from the city-owned organization.

My view is that the public knows the difference between Marlies tickets going to the Boys and Girls Club and box tickets at the Air Canada Centre to watch the Leafs. In other words, it's not that going to a hockey game is in one category, the potential of influencing through the giving of gifts is the mischief.

I'd rather we had a standard that says that, and lets the Commissioner make the determination, than these arbitrary cut-offs. For administrative convenience I can see you need a number and obviously we can't have everything resting on broad discretion. But I'd be fine with $200, $300, or $400. Eyebrows will be raised at some level, and that's the level at which I would put this. I don't think that $50 is in any reasonable person's view the kind of gift that is going to get a public official to act contrary to the public interest. That kind of benefit just doesn't ring true to me.

But again, I respect the Commissioner closer to this. I respect colleagues who say there shouldn't be any limit below which you don't get the scrutiny.

This is one about which people committed to accountability may disagree.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you for your answer.

Mr. Butt, go ahead for seven minutes, please.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Thank you very much, Mr. Chair.

Thank you very much, Dean Sossin, for being on conference with us from York University.

One of the tasks this committee has in the statutory review of the Conflict of Interest Act is to look for areas where the act is obviously working, where it's making sense, where the original idea of the act when it was drafted and came into law five years ago works and is doing what it's supposed to be doing, and obviously looking at ways we can improve it or change it to make it more relevant, based on the experience we've had over the last five years.

Have you looked at other national jurisdictions? I think you mentioned you've done a fair bit locally, maybe in Toronto or with some municipalities, on their conflict of interest bylaws and codes. But do you have some international examples where some countries have it better than Canada, where you believe parts of their legislation could be emulated in Canadian improvements to our act?

[Dr. Lorne Sossin]

It's an excellent question, and there are experts on other jurisdictions who have looked particularly at some recent innovations.

This same process that led to the Conflict of Interest Act five years ago is ongoing in several jurisdictions, often in the wake of a scandal. I'm not aware of one that has been held up as the model, just as the different provincial statutes now give us a range. The empirical work that I've seen really focuses on metrics like what has led to greater public confidence, rather than any objective truth about what monetary penalty works or doesn't work. As I said, in most jurisdictions it's more an example of a trade-off. Those that have ethics commissioners with more powers tend also to have a more legalized procedure, and often it becomes a more litigious environment. Those who have greater discretion tend to invest far more attention on who gets appointed and what kind of all-party support there is, if it's a parliamentary system.

I know there are scholars who focus on the comparative, and I'm regrettably not one of them. In my discussions and review of the literature, I don't think it's fair to say there is a jurisdiction out there that is the gold standard. Of course, this legislation comes out of an evolution federally from earlier models that have arguably been improved on in this legislation. I think it's fair to say it's always intended to be a work-in-progress. I'm not sure there is a perfect balance that will work in every context and for all time, here or anywhere. I think the best one could say is this: as we find the elements that don't appear to be working, is there a fix or a coherence that can be brought to it? This is why we have these parliamentary reviews and why it's so important to not simply let legislation stand without a chance to look at how it's working and how it can be improved.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Would you say, though, that the rules governing a minister's conduct, as well as other public office holders, are stricter now than prior to 2006? Do you think at this stage, based on looking at this act over the last five years, that maybe we do have the balance just about right? We can all have our individual qualms with the commissioner's individual ruling on a certain case, and some of us can agree with her decision and maybe some of us don't necessarily agree, but do you think the right balance is there? Do you think that the rules are clearer and tighter now than they were prior to this legislation coming into force?

[Dr. Lorne Sossin]

Yes, my own view—and, again, it's not a partisan view, but just looking at the evolution of this—is that the act is an improvement on what came before it. The dynamic that you haven't mentioned, though, which is an interesting one for all of you around the table, is that it's not a static process. In other words, the public itself is growing in its expectations of accountability and transparency. I think it's fair to say that even what might have satisfied that balance in 2006 or 2007 needs to keep growing in order to keep pace. Growing doesn't mean just getting stricter or higher monetary penalties or more powers. Greater transparency, a greater sense of a commissioner who is in touch with the standards that are going to work, and also the standards the public is coming to expect are why this is evolving.

It's not like once you get the balance right you can then sit back and relax, because the public is only heading in one direction on this—expecting more and more transparency in more real time, and with greater expectation that ministers are going to be aware of all of this, or public officer holders, when they take on these roles.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

A question before my time is up, very quickly.... When we had Mr. Wild from the Privy Council Office, before we had you as a witness today, he intimated that there are really two processes here for accountability. One is political accountability at the end of the day through the Prime Minister and the Prime Minister's Office, because ministers are appointed by him, they serve at his pleasure, and there's political accountability. But at the same time, obviously, through this piece of legislation and others, there's legal accountability because they are ministers of the crown or because these are people appointed by governor in council appointments, etc.

Do you think that's a fair judgment on how the system does work? At the end of the day, really, it's political accountability that the public is going to judge, through the Prime Minister and how cabinet ministers operate, but, yes, there is also a need for some legislative tool to deal with some of these issues and set some guidelines at the same time.

[Dr. Lorne Sossin]

Yes, I think that's fair. It's a tough concept to get your head around. The same person you voted for—who was on the campaign hustings, who is part of government, who is a political player in a very significant sense—needs at the same time, wearing a different hat, to be an impartial person exercising statutory authorities for the public interest.

There can't be a partisan reason, for example, to approve a particular licence or engage in a particular prosecution or make a decision on the allocation of those resources. This is where ministers really wear two hats and are intended to wear two hats in our system: that they be drawn from the ranks of the elected politicians or senators, but also, when performing those functions, need to be free of conflicts and, I would argue, need to be seen to be free of any conflict of a private nature.

So I think that's right; they're different accountabilities. The prime ministerial one is ultimately about keeping your job. The other one is about a reporting obligation: to say, if there's been a breach, that there has been a breach.

But really, the consequences of that are going to be political for most of these individuals, so these accountabilities are not unrelated, even though they're of different kinds.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you for your answer.

Thank you, Mr. Butt.

Ms. Borg, the floor is yours for five minutes.

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

Thank you, Mr. Chair.

Mr. Sossin, thank you for agreeing to appear before the committee.

A number of times, you mentioned how important public perception is. I agree with you. We want Canadians to have confidence in us, the politicians. One idea that witnesses have mentioned to the committee is that the public should have the ability to make a complaint.

From your broad range of experience, do other countries have a similar model in place? Would that put some power back in the public's hands? Would that be a way to underscore the importance of the public eye you referred to?

[Dr. Lorne Sossin]

It's a very intriguing issue. It's not just citizens, of course, but in some cases it may be people doing business with government; it may be a whole range of people who will come into knowledge of what they consider to be a potential conflict.

I can't think of a principled reason that we wouldn't want to hear those concerns. On the other hand, if you could simply go to all the political opponents of a particular minister and say, “Why don't you start flooding the ethics commissioner with complaints day and night?”, it would become an untenable situation, a more partisan situation, and one ultimately for which there aren't the resources to do justice to the meritorious complaints.

I think a model in which there is an opportunity to welcome complaints from others, but also a screening mechanism such that the commissioner can decide which ones are meritorious and not necessarily have to investigate every one, or every one in the same way, would be a middle ground or a balance.

If you're looking at it from the standpoint of the purposes of the act, I can't think of a principled reason that you wouldn't want to hear concerns from citizens or other interested parties. At the same time, if you opened it up without any constraints, you would undermine those very goals.