Information & Ethics Committee on Feb. 25th, 2013

[Guy Giorno]

I think, Chair, there are several requirements for the enforcement and upholding of laws. Some of them we haven't addressed specifically in our brief, but they are certainly historic CBA positions. We've talked about resources. Those who enforce the laws must have the resources. That is a requirement. Education is important. While it's not specifically addressed in our submission, CBA certainly believes that those who are bound by the law should be educated as to their responsibilities. I think that's part of the answer to the member's question.

If I understand the other part of the question, Chair, the member is asking whether the penalities are required—I don't want to put words in his mouth—to make public office holders more aware of the restrictions on them. That's one reason for the proposal, but I don't think it's the primary reason. The primary reason relates to the rule of law and to fairness and equality before the law. Ordinary people who break laws that are passed by Parliament face consequences, and it's simply incompatible with the rule of law that public officials who break laws made by public officials somehow get a pass.

Also, with any law there are issues related to deterrence. Penalties have a twofold significance. One, they actually are designed to punish or impose a sanction on the wrongdoer. That's one of the reasons we have penalties in our justice system. The second one is to send a message to everybody else, to deter people in future. While the member's got part of the reason for extending the penalty regime, there are probably three or four other reasons as well.

[Scott Andrews, Liberal, Avalon, NL]

I think deterrence is a key issue in this. As you say, the commissioner can write someone up, but then there are no deterrents because, okay, the person gets written up and slapped on the wrist and he's sorry, but then someone else comes along and didn't realize what happened to the other person.

When looking at the penalties, and I think you're the first person to recommend a monetary penalty up to $25,000—you're pretty specific on that—per contravention—should we look at the $25,000 or the amount, and look at the 19 duties and 25 prohibitions and be a little more prescriptive? That is, if it's one of the 19, the penalty should go to x, or if it's one of the 25, it should go to y?

[Guy Giorno]

Well, $25,000 is borrowed from two provincial statutes which relate to lobbying.

The administrative monetary penalty regime is fairly new. The alternative—and public office holders can choose this—is prosecution and imprisonment. Ordinary people who break the law go before a judge and either are fined or sent to prison. That's always an alternative. But if we're going to go to an administrative monetary penalty regime, which is fairly new, there's not a lot of precedent to look at. It's quite clear that a maximum penalty of $500 is not significant either to send a message to offenders or to deter others. The $25,000 is a model. Again, it's a maximum, like a court fine, and it would still require that the severity of the infraction and other things be taken into account. That's something the committee could review. As I said, if public office holders are troubled by the idea of $25,000, the alternative is to do what happens to ordinary folk; that is, they're charged, brought before a court, and fined or sent to prison. That's how the rule of law applies to everyone else in the country.

[Scott Andrews, Liberal, Avalon, NL]

You referred to the 17 breaches that have occurred to which there has been no response. Which one of your recommendations refer to fixing those 17? Also, these are breaches that happen with the designated public office holders. Is there any level of privacy here with these individuals, or if they breach, part of it is that they should be identified?

[Guy Giorno]

Let me see if I can take the member's last question first, Chair, and then go to his first question.

Part of the rule of law is that the administration of justice is open and transparent. When ordinary people break the law, subject to publication bans covering young offenders and witnesses, subject to that narrow area, their wrongdoings are made public. That's part of an open and transparent system of justice. That's why we moved away from Star Chamber. Openness and transparency in the administration of justice is a centuries-old right and principle that we observe here in Canada, so I don't see why public office holders should be any different. For common folks, their transgressions are made public. Public office holders shouldn't be in an exalted position in that respect.

You asked about which recommendation dealt with the consequences of finding a breach. I'll clarify again. For those 17 breaches in the last 12 months alone—there were more previously—it only applies to the areas where the commissioner can impose a monetary penalty, which is none of the 25 prohibitions and only 13 of the 19 positive obligations. It's our recommendation 17, which says:

The Act should be amended to provide as follows: After the Commissioner’s finding of a breach of the Act by a public office holder, the public office holder’s employer or appointing authority...shall be given 30 days to confirm the employment or appointment, as the case may be, and to publish reasons for the decision. If the employment or appointment is not confirmed within 30 days of the finding of a breach, then the public office holder’s office shall be vacated.

[Scott Andrews, Liberal, Avalon, NL]

Thank you.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you very much.

We now go to Mr. Carmichael for seven minutes.

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

Thank you, Chair.

Good afternoon to our witnesses.

Mr. Giorno, I want to begin by asking about some of your recommendations in the CBA presentation. Recommendations eight, nine, and ten all go contrary to the commissioner's recommendations. You've added a good deal more people, and I understand that you talk about common folks and some of the different nuances of people who have access.

I wonder if you could address those three items. I'm most specifically interested in boards, appointments to boards, and where you see the vulnerability, I guess, to the act.

[Guy Giorno]

Sure. To be clear, the commissioner has proposed moving away from the current act. It's the CBA that actually.... We're not trying to enlarge the act here. We're actually trying to keep the act more the way it is in this respect.

The difference of opinion relates to the difference between automatic divestment and case-by-case divestment. The commissioner can speak for herself, obviously, but to explain her thinking just as an introduction to explaining where the CBA takes a different view, her thinking is that in many cases it's enough to divest on a case-by-case basis. You're a public office holder; something comes before you; you own those securities; you report to the commissioner; she tells you what to do, and you either sell it or put it in a blind trust.

We don't quarrel with case-by-case divestment as a mechanism, but it's our belief that in the case of certain public office holders, they're coming into contact with decisions or issues that relate to publicly controlled assets. Routine, frequent case-by-case divestment doesn't make sense. It's simply not practical.

I'll get to appointees in a second, but let's take a minister's office employee, or the example of a policy adviser to a minister. They come into contact with lobbyists so frequently, and they're lobbied on so many issues, that case-by-case divestment is simply impractical. We think the existing rule, automatic divestment, makes sense in that context.

In the same manner, depending on the nature of the appointee.... As an example, if Parliament sees fit to adopt a recommendation to include the Governor of the Bank of Canada under the Conflict of Interest Act, should the Governor of the Bank of Canada divest on a case-by-case basis, or is it understood that he'll have such contact with such issues so routinely that automatic divestment up front is the only way to go?

Similarly, for some of the boards, such as the CRTC, is it even feasible to divest on a case-by-case basis, or would you expect that because a CRTC commissioner has such a wide scope and mandate, the only practical course is what's already in the act, that is, you just get rid of your assets up front?

I hope that answers the member's question satisfactorily.

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

It does. Clearly, when you talk to that effect, I understand you when you say that we, as members of Parliament, choose a certain life. We run for this office—I think it was Mr. Boisvert who addressed that—and we understand the ground rules on the way in.

I understand the breadth of exposure, but I'm wondering if it's fair to extend that to somebody from outside who's being brought into a board position.

[Guy Giorno]

We're only talking, Chair, about boards where the appointments are made by the cabinet, or made by a minister and confirmed by cabinet, and, if our recommendation is adopted, extending it to people like the Governor of the Bank of Canada, namely, the people appointed by other bodies and confirmed by the cabinet. That totals 1,100 in all. Those are, by and large, fairly significant positions.

I'll say two things here. First, no public office is forced on anybody, including a board appointee. Second, those coming from the private sector, as the member will note coming from the private sector himself, are familiar with issues of conflict of interest and rules. Those coming from corporate Canada are already, in their own business lives and careers, familiar with the conflict of interest regime. In my view, they'd be quite understanding of the fact that accepting public office means that one is entering into the conflict of interest regime in that environment.

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

Thank you. I appreciate the explanation.

When the commissioner is asked to launch an investigation, there's always potential for public and external factors to create presumption of guilt prior to her conclusions being made known. Do you see any way to mitigate the attacks on reputation for purely partisan purposes? It's something we see fairly regularly. Is there a way to mitigate that?

[Guy Giorno]

Well, one of the existing rules in the Conflict of Interest Act is the rule which provides that when a complaint is made by a member of the House of Commons, the member should not disclose that information to anyone except the commissioner. That is one of the 25 prohibitions for which there's no sanction. So again, Parliament actually decided that it would be appropriate that members who bring complaints wouldn't talk about them until the commissioner has had her say. That's one of the unenforceable 25 provisions. Our recommendation to make that provision enforceable would go one way toward dealing with that.

More to the point, I think the issues raised with the member were generally dealt with by the openness and transparency that is part and parcel of the rule of law. The more open and transparent a process, the better able the commissioner is to explain findings, or to explain why something has not happened. It will actually create greater understanding, and greater understanding is probably the best way to deal with adverse impacts on the reputation of those who are wrongly accused.

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

Following a complaint where the commissioner has dismissed it as unsubstantiated or an investigation where she's ruled that the conflict of interest has not occurred, quite often the individual being investigated will not know where the complaints come from. Do they have the right to know?

[Guy Giorno]

Under the act as currently drafted, no.

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

Right.

[Guy Giorno]

However, it is fair to say, and this is already dealt with in our submission and within certain sections of the act, that when we enter into a monetary penalty regime, that is, where people are subject to potential penalties for breaching the law, they're entitled to procedural fairness and natural justice. To extrapolate from our position, if you were to apply fines to every provision of the act, which is what we're recommending, then the process for imposing those fines should be one that is judicial. It would include natural justice and fairness, and it would be quite appropriate—and it's something the committee can look into—to apply the procedural safeguards and the principles of justice that allow you to know your accuser. Certainly, common folks who are brought before the courts know who their accusers are.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you, Mr. Giorno. Mr. Carmichael, your time is up.

We will now have five-minute question periods.

Mr. Boulerice, go ahead.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Thank you very much, Mr. Chair.

Ms. Froc, Mr. Giorno and Mr. Boisvert, I want to thank you for joining us and for the quality of your presentations.

Mr. Giorno, I understand your feelings very well when it comes to this legislation's flagrant injustice toward Canadians. Average Canadians are subject to laws that involve punishment. It does seem somewhat strange that we can get around that. I think that the punishment issue is extremely important.

Mr. Boisvert, thank you very much for your clarifications regarding gifts. It is true that a gift is never free. You are entirely correct. Thank you for mentioning anthropologists because I think we do not talk about them often enough on Parliament Hill. You also talked about the definition of a special interest. You said that the problem is not caused by the legislation itself, but rather by the evaluation processes or mechanisms that could be used to assess effectiveness.

I have a fairly broad question. What additional resources or mechanisms would you like to see for assessing the legislation's effectiveness? In addition, do you think that obligating the conflicts of interest commissioner to personally meet with legislators to explain the spirit of the law would be a good starting point to avoid trouble down the road?

[Dr. Yves Boisvert]

Your question contains two aspects.

The first aspect has to do with the whole issue of means, which is key. Truth be told, the debate is no longer really about what legislation could be improved. Today, my colleagues are contributing significantly to the improvement of the law. What has been shown is that the major challenge has to do with the tools for enforcing the legislation in the government setting. An extensive debate should be held on that topic. It should be determined what the real needs of our commissioner are, so that she may fully meet the goals set by the legislation. I think that is the first issue.

Keeping in mind this legislation and the commissioner's means, we should define the indicators that will enable you to determine—every five years—whether the objectives set by parliamentarians have actually been reached. That is the key question. Can that be assessed? For instance, the former integrity commissioner sparked a major debate. One thing she was criticized for was her lack of a positive response to the expectations involved in the investigations following disclosures. That is an important debate. Parliamentarians' expectations need to be known. We need to know whether objectives can be set. We need to know what kind of investigations should be conducted and how many investigations—following disclosure—are continued or rejected.

So the whole issue of budgets should be reviewed. Money is still key. According to the OECD trend, reports were produced only on the presence of ethics and integrity measures in legislation. So saying that we have a disclosure line was enough to be well-rated. In 2005, the OECD realized that this way of doing things was deceitful and misleading. You could have a disclosure line, but only two public servants handling the calls. So there were no guaranteed results in that case.

In my opinion, the debate should focus on the tools, including punishment. I agree 100% when it comes to that. That is one of the key tools for making public office holders give these matters some thought.

I have another issue to raise, regarding another aspect.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

There is the question on one-on-one meetings, actually.

[Dr. Yves Boisvert]

Let me quickly talk about socialization. I started by saying that there were four basic points. In my view, the whole debate on socialization and raising ethical awareness is fundamental.

In one of my research studies with elected people, including 17 former ministers from the Quebec legislature, 100% of them said that they were never introduced to the concept of socialization or made aware of ethics in 2004. So that raises a question: when a new Parliament is established, should we not make it our duty to socialize and educate the new public office holders, if we care about legislation on ethics and integrity? It is essential, in my view.

[The Chair, NDP, Pierre-Luc Dusseault]

You have 10 seconds left.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Only 10 seconds?

Thank you very much.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you, Mr. Boulerice.

Thank you for your answer, Mr. Boisvert.

I will now give the floor to Mr. Warkentin for five minutes.