Information & Ethics Committee on Feb. 13th, 2013

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

Thank you.

The commissioner also recommended harmonizing the members' code and the Conflict of Interest Act. Do you have any thoughts on that? Would that make your job a bit easier?

[Joe Wild]

I don't think it will make my job easier, mainly because, from a public service perspective, we play no role in the development of the policy on the code for members of the House of Commons, or the Senate for that matter. That is done under the auspices of the legislative branch of government, and we have no role in it.

I don't think it would change anything. I can't imagine that I would ever be asked to provide policy advice on the code for members of Parliament. To that extent, to combine them into a single act would just raise the question of how to structure the process of reviewing that act, and how to make amendments to it, given that you would have split policy responsibilities. Part of the act would be under the policy jurisdiction of the executive branch—the government and my office—and the other part would be under the legislative branch and whatever House committee is used to review the rules for members of Parliament.

This creates a certain logistical tension in how you would go about doing a review of a combined piece of legislation on a five-year cycle, as we're doing now. I'm not sure how that part would work. I don't think it's an insurmountable obstacle. I just point it out as something that would have to be thought through. You have the two different arms of government, the legislative and executive branches. We have very different roles vis-à-vis these two branches, and I have absolutely no role whatsoever to play in the code of conduct for members of Parliament.

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

Thank you.

I am going to pick up on the ministers' guide for a moment.

In your opinion, if you heed the advice contained in the guide, can you really avoid scandal or successfully navigate through a grey area? Is the guide quite helpful in that respect?

[Joe Wild]

By “guide”, do you mean accountable government?

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

Yes.

[Joe Wild]

Certainly from my perspective, I'm able to see from my vantage point how that document has changed over the years, because I've seen every version of that document from the very first one produced by Prime Minister Trudeau all the way to the version that exists and that was published in 2011. I can say that the document is remarkably consistent in the fundamental principles that it enunciates. I think those principles resonate not just in Canada, but are the kinds of principles that you would expect to see in most Westminster forms of government. So in that sense the base, the foundation, of that document is almost, in a sense, timeless. It really reflects the hundreds of years of evolution of Westminster government. Those basic principles are all tried and true.

The notions of what it means to have cabinet government, the role of a prime minister in cabinet government, the role of the governor general, the role of the executive, the role of Parliament, the accountability relationship between ministers and Parliament, the role of deputy ministers, the role of exempt staff, those are quintessential principles of our form of government. They tend not to radically change over time. They may be evolving, but I don't think there's anything in the current version of accountable government that would suggest there's any weakness in those core principles.

I think, generally speaking, it's pretty robust. At least when I look internationally at Australia, New Zealand, the United Kingdom, I see very similar types of documents produced by them that enunciate these principles in very similar ways. We're remaining fairly consistent within our Westminster tradition.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you for your answer.

We now move on to Mr. Butt. You have five minutes.

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

Thank you very much, Mr. Chairman.

Thank you, Mr. Wild, for being here today.

At the outset, I want to say I think it's great that we're doing this five-year review. I think it's great that we brought forward the Federal Accountability Act, and, as part of that, the Conflict of Interest Act, and that we did try to set some rules. We brought a comprehensive package forward and we've done our best. The whole idea of this review is to get feedback from you and others on the following. Is it relevant again five years later? Is it covering the right people? Are the right disclosures being done? Is the commissioner's mandate appropriate?

In that vein, I asked the commissioner on Monday a couple of questions, because I'm struggling with a part of the act. Obviously, we're covering certain public office holders, including cabinet ministers, but essentially we're saying to somebody that once you're appointed to cabinet, you're not really a member of Parliament anymore. You're not really there. You can't really advocate for your community on a local issue. And I'm struggling with that.

I'm sure every MP, if they're on the government side, wishes they're going to get that call from the Prime Minister and they're going to get appointed as a cabinet minister or a parliamentary secretary, and they want to take on that role and they want to do that job to the best of their ability. But it sounds like the way this act is written we've almost handcuffed those same people, preventing them from being able to advocate for their community on an individual issue, which may have absolutely no relation to the ministry of which they're a minister.

Is that a shortcoming in the act? Or was it particularly deliberate that we really do have two very clear sets of individuals who work in the House of Commons, those who are in cabinet or parliamentary secretaries and those of us who are regular MPs?

[Joe Wild]

There are a couple of things around that question. There's a bit of grey in the answer in the sense that the act does attempt to balance the idea that you have ministers who are also members of Parliament. Quite frankly, their constituents have a right to receive the same services from their member of Parliament as from other members of Parliament. So, how do you balance that then with the role a minister may have and the issues that can create?

Subsection 64(1) of the act is a very important subsection. It was the subject of a lot of discussion when the act went through the House and Senate the first time around. It's an important section because that is the section that lays out that nothing in the act prohibits a member of the Senate or House of Commons, who is also a public office holder, from engaging in those activities that he or she would normally carry out as a member of the Senate or House of Commons.

That was a deliberate choice to put that provision in at the time. It was put there because the idea was that ministers and parliamentary secretaries would have to play a role as MPs and senators in conducting activities on behalf of their constituents. The recent decisions of the commissioner have suggested that there are certain areas where that work has to be curtailed.

I would say there is nothing necessarily new in that debate. This whole issue of the role of ministers vis-à-vis certain types of bodies, in particular bodies that carry out any kind of an adjudicative function, has been an area of discussion and controversy going back to the early nineties and probably even before.

I think the difficulty is whether or not additional clarity may be needed to try to figure out where the lines of the go and no-go zones need to be drawn. The commissioner offered her views when she appeared and the committee is going to have to look closely at that and think about that.

I can say that the primary concern in the development of the act, if you look from 1990 forward and you look at how accountable government has changed—because it has a whole chapter that deals with the role of ministers vis-à -vis administrative tribunals in crown corporations—and if you look at all of the issues that have gone on in that last 20-25 years, the line that's being drawn is really saying that you have to be particularly careful if you are a minister responsible for the actual organization.

If the organization is in your portfolio, you need to be particularly careful about having any interaction with that organization in order to further the interest of a constituent. But you still have to be able to do the things that an MP would otherwise be able to do. There should be processes put in place so that your constituents can have the normal referrals that other MPs may be able to offer them.

The uncertainty at the moment is where all of that sits, given the recent decisions of the commissioner and whether or not these are policy areas that the committee wants to weigh in on. I think we will wait to see what the committee has to say about them.

From my perspective, from a public policy perspective, we need to look at that to make sure that the balance is all correct. Right now, I think there is a bit of tension between the orders the commissioner has issued and how accountable government is framed, and we're going to have to look at that.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you for your answer.

I will now turn it over to Ms. Davies for five minutes.

[Libby Davies, NDP, Vancouver East, BC]

Thank you very much, Chairperson.

What we're talking about is a very complex issue. What I'm struck by in your opening remarks is the number of players involved and the number of levels and nuances, whether it's the Conflict of Interest Act, “Accountable Government”, the Public Servants Disclosure Protection Act, and then we have the Treasury Board guidelines as they pertain to senior employees or all public employees, the Lobbying Act, and two different commissioners.

At the end of the day we would all say we want there to be clear, ethical rules and we want there to be an avoidance of any conflict of interest. So I think part of this statutory review is to really try to get at the issues as to whether the system itself is not clear enough, or whether it's being enforced properly, or in fact if there really isn't any enforcement—and you've spoken to that a little bit today—so that if an action takes place there is really no consequence. Those are the questions we have to try to drive at.

I am curious that you've just said, in response to one of my colleague's questions, that you think there is a grey area between what pertains to a minister and what pertains to that person as a member of Parliament. When Ms. Dawson came on Monday she seemed to think there is a clear delineation.

I really think it opens up a lot of issues: is there clarity around what these guidelines or rules are in terms of the people administering them, and in terms of the people who have to live by them? Everything you've said today leads me to think that it isn't where it needs to be in terms of overall clarity, and that all kinds of stuff can go on, whether deliberately or not. That's what we have to focus on because at the end of the day it is about public accountability and being very clear on where we all stand on this.

Maybe you could address that, in terms of whether there is a need to look at some overall structure, and why you think there is a grey area where apparently Ms. Dawson doesn't have that opinion. That's definitely a different approach you're taking there.

[Joe Wild]

I'm certainly not trying to disagree with the commissioner. That would be a bit presumptuous of me since it's ultimately her responsibility to interpret the act.

What I'm saying is that annex H to “Accountable Government” sets out a frame of guidance around the interaction of ministers with quasi-judicial bodies, bodies that carry out adjudicative functions. The recent compliance orders would necessitate our having to change that guidance.

In other words, what we thought was happening under subsection 64(1) the commissioner has, I suppose you could say, clarified is not actually what's happening under subsection 64(1). We need to look at annex H because annex H—which was really rewritten back in 1993 and hasn't changed much since then—moved the yardstick away from a complete ban on any interaction between a minister and a quasi-judicial body to saying that the ban is with respect to the actual adjudicative function, but, for example, licensing or permits where the representations are open to anyone to be made, may be okay.

All I'm saying is that as a result of those compliance orders coming out, we now have to look at that and judge what it means in terms of what we thought was the policy framework we had established through the act, and look at what subsection 64(1) meant, and then how that was being reflected in the specific guidance in “Accountable Government” around the interaction between ministers and quasi-judicial bodies.

It's clear to me that we have a problem right now as it sits and that we're going to have to revisit what we thought were the rules of the game because it looks like they're not what we thought they were.

[The Chair, NDP, Pierre-Luc Dusseault]

Ms. Davies, your time is up.

I will now give the floor to Ms. Davidson for a few minutes before we move on to our next witness.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thanks very much, Mr. Chair.

Thanks, Mr. Wild, for being here with us. It certainly has been interesting testimony that we've heard this afternoon. I know that I've learned some things that I didn't know before you started giving your presentation, so I really appreciate you being here.

You talked in your opening remarks about the PCO and how they're the primary public service adviser to the Prime Minister. Part of your responsibilities, if I understood you correctly, is to determine whether or not the act covers what it needs to or there need to be other things, and whether it covers the appointees that it needs to cover.

I have a couple of questions.

Do you think the act covers what it needs to? We've had some people suggest that there should be other Governor in Council appointees or people covered by this act. What do you think about that?

Also, here's one of the other things that I have wondered about myself. Should parliamentary secretaries be held to the same restrictions as ministers when it comes to cooling-off periods and the rest of it?

Could you comment on those, please?

[Joe Wild]

With respect to coverage, and in particular the appointee question, I think it's certainly clear that there is a particular form of appointee that the committee may wish to consider, whether or not the definitions of public office holder or reporting public office holder need to be changed in order to capture those individuals. It's a somewhat unique form of appointment, wherein you have chief executive officers who are appointed by their board, rather than by a minister or the Governor in Council.

In particular, we all know about the case of the Governor of the Bank of Canada. There are directors of museum corporations, as well as pilotage authorities, who fall under this category. I think it's clear that there's probably something to be said for looking at whether or not that definition needs to be revisited in order to make sure we haven't missed anybody.

The parliamentary secretary question is an interesting question from the perspective of, again, the purpose of the act. It's trying to ensure that those who are discharging the exercise of powers, duties, and functions housed within the executive branch of government are doing so in a way that they can not only demonstrate publicly, but that they are in reality being done in a way that is not influenced by any private interests, right? That's the overall objective here. It's to make sure that the public then has trust that those who are exercising executive authority in government are doing so in a manner that is appropriate, with “appropriate” meaning determined by the public interest, and not influenced by the private interest.

I think there's a big question about where parliamentary secretaries then fit into that scheme. They don't have any powers, duties, or functions in law. Their role is to assist ministers vis-à-vis their responsibilities in the House of Commons.

They may also assist ministers in developing government policy, but they don't actually discharge a specific in law power, duty, or function in the same way that ministers do, or, quite frankly, public servants who exercise authority on behalf of ministers, so there is something to be said about looking at whether or not they fit into a slightly different category. They don't necessarily have access to the same information that ministers do. They don't have access to cabinet information, typically; they may be provided some cabinet information if they work on a particular policy issue for a minister. They exercise a slightly different category of duties, so they have a slightly different relationship in terms of, to me anyway, the issues that the act is trying to capture.

That's an area that, again, the committee may want to think about and look at as they think about what a parliamentary secretary does versus what a minister does, the difference of the use of authority, and the access to information between the two within government.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you, Mr. Wild, for your comments.

That brings our first hour of testimony to a close.

We will now take a short break to get set up for our next witness, who is joining us by videoconference.

[The Chair, NDP, Pierre-Luc Dusseault]

Colleagues, members of the committee, we will now reconvene for the second hour of our meeting.

As per the agenda, we will now hear from Lorne Sossin by videoconference. Mr. Sossin is the dean of York University's Osgoode Hall Law School in Toronto. As usual, we'll begin with a 10-minute presentation, followed by questions and answers.

Mr. Sossin, please go ahead. Thank you for joining us.

[Dr. Lorne Sossin, Dean, Osgoode Hall Law School, York University]

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.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you for your remarks.

Now we'll move into questions and answers, beginning with Mr. Angus for seven minutes.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Mr. Sossin, for being with us today. We really appreciate your advice. I'm not a lawyer myself, but there are many lawyers here in Parliament and we do deal with legislation.

Therefore I find it sometimes a little surprising that my Conservative colleagues get very confused about what rules are right and what rules are wrong. For example, on January 18 the Ethics Commissioner ruled that Finance Minister Jim Flaherty clearly broke the Conflict of Interest Act when he wrote a letter, as a minister, on behalf of a commercial interest that was not in his riding. It was based on section 9 of the act, which prohibits ministers from using their influence, and it also was in conflict with the Prime Minister's own guidelines.

Now I just heard from a representative of the Privy Council who said this was a very grey area and that perhaps the committee needed to look at it. We asked Ms. Dawson and she seemed to think the rules were very clear.

Are the rules clear on the issue of a minister writing to a semi-judicial body, or is it, as the Privy Council person was saying, a very grey area and they're not very sure what the rules are?

[Dr. Lorne Sossin]

In my view, this is not particularly grey. Section 9 is clear. What creates the opportunity for clarification, and I'm not sure that's the same as a grey area—that's for you to explore—is the operation of section 64 in this other provision of the act, which speaks to not wanting to interfere with the ordinary activities of a member of Parliament.

I think it is clear that section 9 needs to constrain the other section. In other words, there shouldn't be any interference with the ordinary conduct of an MP's affairs, except to the extent that you cannot use a position of influence to affect an adjudicative or regulatory decision.

The public confidence metric is the key one. I heard a bit of the Privy Council representative's thoughts, and it goes to a particular appendix and particular language, and I don't want to speak to the specifics of what protocols or guidance exist and what needs to be revised. But the principled approach is pretty clear: it would make no sense to have a section like section 9 that sets a global restriction on any public office holder using that influence to get a particular result for any private or commercial interest if the exception were whenever you were doing so for a constituent, or where there was that other relationship.

That is not to say, with respect to Minister Flaherty, that there was an attempt to undermine the act or an attempt to act improperly. It's important to also remember the advice-giving and principle-clarifying role of this office and this legislation. The idea, in other words, I don't think should be just the ex-post moments where you can say someone contravened the act. The best-case scenario is where conduct can be governed by good advice and good, sensible distinctions based on the legislation.

So I don't think it's particularly grey, but having two competing provisions does raise the important moment to say here is how they live together. In this case, it is pretty clear how they live together, and section 9 has to prevail whenever there is any ambiguity. When you're sitting on the fence and don't know which way to go, the purpose of the act has to be the governing issue, and you don't have to be a lawyer to see why that would be the most sensible way to understand the legislation.

[Charlie Angus, NDP, Timmins—James Bay, ON]

That's the way I interpret it. We weren't expecting Commissioner Dawson to jail the finance minister over this. She was clarifying the act. I think it was fairly clear. She said section 9 did take precedence.

I'm not sure if my colleagues on the other side are trying to water down the act, but they seem to be very uncomfortable by this. I had asked if it was okay for me as an ordinary member of Parliament under section 64 to write the letter, and she said it was absolutely correct. My colleague Mr. Warkentin then suggested that if Charlie Angus received financial interest from Aboriginal Voices Radio, would that be wrong? She said, well, then, she would consider it. But as I received absolutely no donations from Aboriginal Voices Radio, I remain, like my colleagues around the table, an ordinary member of Parliament.

She clarifies the rules. It would seem to me that we should be able to move on, but my colleagues on the other side seem to want to perhaps reopen this and water down the act.

I'd like to just ask you something else about my colleagues' concerns. They seem to be very much against any administrative monetary penalties for ministers who break the law, but they are suggesting that perhaps an MP who writes to the Ethics Commissioner with an investigation, and lets anyone know, should be liable for punishment because this should be kept secret.

The example I'd use is from last Friday. Is it Mr. O'Toole, the new guy from Durham? He did a press release saying he was going to launch an investigation against one of our colleagues. It's a fairly spurious accusation, but he didn't tell the Conflict of Interest Commissioner until Monday, so to me that's politics. It's not great, but it's politics.

Is there anything to be gained by deciding that we're going to keep investigations secret? It seems certainly there would be something to be gained by a minister being able to keep an investigation secret. But is it really something that's going to add anything by our going after Mr. O'Toole and subjecting him to monetary penalties for the fact that he went to the media before he went to the Ethics Commissioner? Wouldn't we just say, “Hey, this is politics”?

[Dr. Lorne Sossin]

It's an absolutely critical puzzle, in a sense. Look, I have no partisan axes to grind on any side here, but I think it's clear to anyone that you would defeat the purpose of giving sensible advice and being able to engage in investigations, which sometimes need to be developed away from the public glare, if the entire thing was transparent from start to finish.

On the other hand, it seems completely unfair for me to ask for the investigation on a Wednesday, launch a complaint, and then on Friday stand up and say, “I hear the minister is under investigation by the Ethics Commissioner and that's reason number 15 why they should resign”, and not have either the Ethics Commissioner or the subject minister be able to say anything in defence of that.

To me the goal is how to make sure we're going to get efficient, effective investigation, with efficient transparency to enhance public confidence and to avoid that kind of potential unfairness. If this just becomes another vehicle through which to express partisanship, then I think we've clearly lost an opportunity for accountability, which is what the public wants. But that said, it has to live within the realities—

[Charlie Angus, NDP, Timmins—James Bay, ON]

I'm running out of time now.

[The Chair, NDP, Pierre-Luc Dusseault]

Unfortunately, your time is up.

It is now over to Mr. Carmichael for seven minutes.