Information & Ethics Committee on Feb. 25th, 2013

[Chris Warkentin, Conservative, Peace River, AB]

Thank you, Mr. Chair.

Thank you to our witnesses this afternoon. We appreciate your testimony with regard to this matter.

Oftentimes there seems to be confusion between what the rules are and how they might be interpreted by a respective commissioner.

One of the ones I've been following somewhat is a case involving one of our colleagues, NDP member Andrew Cash. It was recently revealed that he was receiving over $40,000 on an annual basis from what is a crown corporation, the CBC. What is disturbing is that he sits at the table of the heritage committee.

When we had the commissioner here, she said that what happens at committee is noted and should be noted with regard to whether or not there is a conflict of interest.

In this case not only is there a perception of conflict of interest, and I think that has been revealed through the media interest in this case as well as by members from several other parties, but there may be a real conflict of interest, because we do note that a letter was sent to the member indicating that he should refrain from voting on issues surrounding the CBC and refrain from engaging in debate with regard to this, both of which he has contravened, based on the public record.

You have talked generally about the necessity of not accepting gifts. If the limit of a gift is $200 and $40,000 is actually 200 gifts of $200, this seems like a significant issue and one the public has a great interest in.

How might you suggest Mr. Cash, or members of Parliament who find themselves in a situation similar to that of Mr. Cash, present themselves and undertake their responsibilities in a way that reduces the conflict of interest and both the perception of and quite possibly the real conflict of interest?

The question is for either of our witnesses.

[Dr. Yves Boisvert]

I think it is difficult to take a position on the specific matter you have brought to our attention. It is always a little tricky to comment.

I am not sure if my colleagues have something to say about this.

[Chris Warkentin, Conservative, Peace River, AB]

Let's call it all hypothetical, but the commissioner made it very clear when she was here that undertaking one's responsibility at committee needs to be separate from presenting a conflict of interest. She was absolutely clear.

I'm wondering what you might suggest in a circumstance like this. Obviously this gentleman is employed by or has a contract with CBC, which is a crown corporation that receives appropriations from the federal government, from the Canadian taxpayer, that directly then support him and the cash payments that he receives.

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

Mr. Chair, I have a point of order.

[The Chair, NDP, Pierre-Luc Dusseault]

You have the floor.

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

I think we are really talking about a specific case. We are actually all here to see how we can study the legislation in greater detail or how to amend it, not to seek a legal opinion on a specific case. In fact, the commissioner sent a letter to Mr. Cash telling him that what he is doing is in compliance with the legislation.

[Chris Warkentin, Conservative, Peace River, AB]

That's not a point of order.

[The Chair, NDP, Pierre-Luc Dusseault]

I would just like to remind you that it would be easier for the witnesses if we focused on the conflict of interest legislation for public office holders, not the code for members of Parliament. Let's try to stick to the office holders issue as much as possible. Members of Parliament are not subject to the legislation.

I will allow you to continue as long as you stick to the act, not the code for members of Parliament.

[Chris Warkentin, Conservative, Peace River, AB]

Yes, I understand that you ruled on this several times when Mr. Angus brought forward names specifically alleging misconduct.

What I'm interested in is not a ruling on this. I have been very clear. What I'm looking for is a way, an avenue to reduce this type of situation in the future for any member of Parliament across party lines. This is one that's been high profile. It's been one that has caused Canadians across the country to question the system. How is it that you have a sitting member of Parliament who is voting on appropriations to a crown corporation or agency and is receiving funds from that agency directly?

The question is how we might set up safeguards to ensure that this type of thing doesn't continue.

[Guy Giorno]

Chair, one of our recommendations addresses this very directly. The situation described by the member actually arises under the code. The CBA has no position on the code.

We do have a position on the act. Our position on the act includes a recommendation that every prohibition in the act be enforceable by fine. On the question related to the code, under the act the analogous restriction is in section 6 of the act, which prohibits a public office holder from making decisions or participating in decisions when he or she has a private interest as defined in the act. Right now there is no penalty for breaching that under the act. There is no fine. There are no repercussions short of a report to Parliament.

I think the answer to the member's question is that the CBA recommendation that every single prohibition and the remaining six duties in the act that have no sanctions attached to them be made subject to penalties so that somebody who breaches that—granted the question was under the code—the corresponding obligation under the act would be subject to financial penalty.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you, Mr. Warkentin. Your time is up.

I will now give the floor to Ms. Borg for five minutes.

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

Thank you very much, Mr. Chair.

I would also like to thank the witnesses for being here with us today.

Mr. Boisvert, you said that it is always a challenge to manage post-employment. Right now, perhaps we are not investing enough resources or we are not going far enough.

Could you please elaborate on your remarks? I would like you to tell us how to improve the situation and how to ensure that, once individuals leave their public office, they are accountable and do not receive substantial gifts that may well be controversial.

[Dr. Yves Boisvert]

Post-employment is always a major problem. This is the debate on people's right to have a career afterwards. We cannot impose restrictions on post-employment, given that public office holders have the right to find a subsequent job.

However, there is always the question of whether we have the tools to follow up on those careers. What often happens is that, less than six months after they leave, former public office holders are working for companies they have been in contact with before. We have even seen ministers negotiate their post-employment while they were in office, which is certainly a problem. It is often a matter of figuring out if they are lobbying former partners. It is not really the lobbying that should be monitored, but the potential benefits and preferential treatment.

In terms of the issue that I am discussing, there is a whole debate on the orders in council that were used during the transition. The perception is rather negative. People were wondering if the orders in council were not used as favours. It is not about passing judgment, but about the rationale behind the perception. In other cases, the question was whether post-employment was negotiated while individuals were working in the government.

I think those in charge of managing post-employment should have the opportunity and the necessary resources for oversight for about a year or two, depending on the type of public office. This follow-up would enable us to hold public office holders accountable. Every two or three months, for instance, former public office holders could be required to provide a post-employment report. The possibility of imposing sanctions should also be explored. Our colleagues might be able to talk about this issue in terms of non-compliance.

I see people shaking their heads, but I think we should provide those people with the tools to impose sanctions on former public office holders who commit offences. An instance of an offence would be if a public office holder becomes the vice-president of a company they dealt with in the last six months of their mandate as a public office holder. I think it might be interesting to hear what Mr. Giorno has to say about this.

I feel that imposing sanctions should be a key tool.

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

I really appreciate your opinion on the issue, but I only have five minutes.

All three of you are welcome to comment on my next question.

Mr. Boisvert, you mentioned that we should clarify what personal interests are. Clearly, I am not asking you to give me the definition of what you would like to see implemented. Instead, could you tell us what a better definition would be and whether there is an international model that works well?

[Dr. Yves Boisvert]

At the institutional level, I agree with my colleagues. I think all governments are in a conflict of interest when the time comes to define their legislation. We do not have a major reference point because all public office holders across the world take advantage of their situation to weaken the legislation that governs them. So we would have to turn more to international organizations for solutions. In terms of broader personal interests, we have to think about so-called “factual situations”.

For instance, community networks, association networks and interest groups could benefit from decisions in their favour as a result of belonging to the public office holder's local network. In that case, it is not a question of personal interests, but rather of the influence of the public office holder's local network, which will go well beyond their traditional private sphere as set out in the legislation, meaning their children, spouse and their immediate network. So it is the broadening of their network.

Debates often deal with political parties, friendship networks, association networks and interest group networks. At that point, situations come up, where we can often see that those expanded local networks received interesting favours. The idea is that favouring the interests of these local networks goes against the public interest.

In the present debate, we are talking about conflicts of interest. We must never forget that, in public life, conflict of interest means acting against the public interest to serve a personal interest. So a public decision is not made for the common good, but rather to serve a personal interest. That is the essence of the debate.

I said that this should be made clear in the preamble of the legislation. At all times, a public decision is always used as an indicator to assess whether there is a conflict of interest or not. The decision is made to promote the common good and the public interest, not to serve all kinds of personal interests. I think that we are reviewing the logic of the legislation in part by broadening this dimension.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you, Mr. Boisvert. Your time is up.

Mr. Butt, you now have five minutes to ask your questions.

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

Thank you very much, Mr. Chair.

Good afternoon, ladies and gentlemen. Thank you very much for being here and appearing before the committee for what I think is an important statutory review of the Conflict of Interest Act.

One of the things we're finding out as a committee is that there are some similarities and also some conflicts and differences between the Conflict of Interest Act and the Lobbying Act. I'm going to assume that both of you learned gentlemen are familiar with both pieces of legislation.

The committee has found that the term “designated public office holder”, which is housed within the Lobbying Act, has many similarities to the term “reporting public office holder”. If they were to be more aligned, if we were to get a better definition so that they were covered in both acts, which act do you believe would maintain a better single, symmetrical definition of those individuals?

Do you want to start, Mr. Giorno?

[Guy Giorno]

Thank you.

The CBA's position, under both the Lobbying Act and the Conflict of Interest Act, is that post-employment restrictions should be harmonized for the reason the member alluded to, so there's greater understanding and clarity administered by a single person. That said, and there's always a “but”, the task of harmonization is actually quite challenging and difficult.

The Conflict of Interest Act right now imposes restrictions not just on paid lobbying but on unpaid lobbying for a shorter period of time. The Lobbying Act imposes restrictions on all lobbying, but it has to be paid for a longer period of time, and then it exempts people who work for corporations and who don't lobby 20% of their time. A decision has to be made as to whether, in harmonizing, it is more important to go after the paid lobbying for the longer period or unpaid lobbying immediately after you leave.

“Designated public office holders” is in fact the wider class. “Reporting public office holders” includes only public servants who are appointed by order in council. That's deputy ministers and people with the deputy minister rank, whereas the designated public office holder position goes to the level of assistant deputy minister.

The CBA actually has no position on how to harmonize, but I do stress that the DPOH, the so-called designated public office holder, category is broader, so it would cover more people. While there is no official CBA position on this, obviously, in the interest of covering more...harmonizing, in one way, would cover fewer people and therefore be less likely to achieve the purposes of either statute.

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

Okay.

Monsieur Boisvert, do you want to comment on that as well?

[Dr. Yves Boisvert]

No, thank you.

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

No, okay.

One of the things I'm trying to figure out, and it doesn't affect me personally because I'm neither a parliamentary secretary nor a cabinet minister, is that 308 individuals are elected to Parliament. We're all elected to do the very best we can for our constituencies, and also to advocate for our constituents on a wide range of issues.

You probably are aware of a couple of instances lately where the commissioner has ruled, essentially saying that cabinet ministers and parliamentary secretaries, simply because they are cabinet ministers and parliamentary secretaries, can't write letters to support anything a constituent is proposing to do on a wide variety of things, even if that matter has absolutely nothing to do with the ministry in which they are involved.

If the Conflict of Interest and Ethics Commissioner is interpreting the act correctly, and I'm assuming she is doing her very best to do that, is that a fair restriction? You're a member of Parliament; you're elected to advocate; you happen to be asked by the Prime Minister to take on an additional responsibility through a ministry or as a parliamentary secretary. All of a sudden it sounds as if the interpretation is that you're really no longer a member of Parliament.

Is there a way we can have some better definition around that? Why shouldn't a minister of the crown, as a local member of Parliament, be able to write a letter in support of a constituent on a local constituency issue, or do you feel that is a reasonable restriction, that once you've been appointed to cabinet or as a parliamentary secretary, you're essentially no longer a member of Parliament?

[Guy Giorno]

The interpretation as described by the member is true. That's how the act is interpreted and now stands. It's not entirely inconsistent with the history of the position of public office holders, like ministers and parliamentary secretaries. It does recognize the fact that the people we're talking about, who may be the recipients of letters or recommendations, are themselves people who are appointed by cabinet.

There is a question whether it's appropriate for a cabinet minister who may be in a different portfolio nonetheless to write a letter to somebody who is a cabinet appointee or a public officer where that's appropriate.

The second point to be made is that as our system of justice has evolved and become more complex, we have over decades and centuries less and less being decided by judges and more and more legal matters being decided by independent tribunals, such as the CRTC, the Canada Industrial Relations Board, etc. In fact, it's probably safe to say that more legal decisions are made by tribunals and administrative agencies than by the courts.

If one would not accept a minister of the crown writing to a judge, is it any different for a minister of the crown to write to a CRTC commissioner who has the same type of statutory power of decision?

The CBA has not recommended any changes to the act in this respect, and I think it's safe to say it's because we believe the act is appropriate in this respect for some of the historic reasons I've outlined.

[The Chair, NDP, Pierre-Luc Dusseault]

Mr. Boisvert, would you like to add something?

[Dr. Yves Boisvert]

Yes.

It is interesting to note that our studies on elected representatives and former ministers have brought to light an ethical dilemma. The ministers were well aware that one ethical issue dealt with the line between their status as members of Parliament and their status as ministers. It was fundamental to determine whether they were called upon to deal with an issue as members of Parliament or as ministers. I don't think the signature of a minister holds the same weight as that of a member of Parliament. That's fundamental and the legislation should clarify those things.

If the situation involves a constituent in their riding, I think they have to go back to their perfectly noble status of member of Parliament. But they have to make sure that their signature will not have a negative impact on their position as ministers, which is more important, since it can have a serious impact on their government. In terms of ethics, perhaps the idea is to make sure that they are not placing their government in a vulnerable situation. I don't think these thoughts only apply to the legislation. They also apply to the management of ethical dilemmas that ministers should be able to understand. Beyond legislation and codes of ethics, I think ministers must be made aware of ethical issues that concern them.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you.

Mr. Boulerice, you now have the floor for five minutes.