Information & Ethics Committee on March 4th, 2013

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

Thank you, Mr. Chair.

Thank you to our witnesses this afternoon.

I want to talk about administrative perspectives on the act, but before I do that, I have to go back to the value of gifts and some of your questions. I'm not clear, and I hope we don't lose my full time on that issue; I'm sure we could.

I don't collect snow globes, so I shoot those across to my colleague whenever I get one.

The question is regarding the size of gifts. I know that in your opinion of these gifts, when you start talking about things like fundraisers, galas, etc., in reducing the value to zero, we eliminate it altogether. Is that standard across both acts, from your perspective, and is that a fair and balanced approach to dealing with the issue?

[Jim Patrick]

I'll talk about the Lobbying Act first. This committee recommended a complete ban. We haven't seen that come in. The government seemed to endorse that in its response, and I guess we'll wait to see the legislative amendments when they come forward.

With respect to the Conflict of Interest Act, we noted the framework around gifts—there is the guidelines document and so forth—and there isn't an express prohibition. There's a requirement for disclosure and a requirement for forfeiture.

There have been recent cases that we have been made aware of where the Conflict of Interest and Ethics Commissioner has strongly suggested that a number of chiefs of staff to ministers, for example, not attend an event. There was the perception that a meal would be served and therefore it was a gift. It's probably not something you would put in the act, but it's part of the downstream process, part of the creation of guideline documents that would support the act. You're going to want to look at whether a meal is a gift. What if it's two courses, not three courses? You've all been to lots of gala fundraisers.

If you put those two acts together and in the course of that discussion you determine that we should stay away from these things because there could be the perception of undue influence—“It's a lobbyist inviting me and I don't want to be lobbied over dinner.” If you're comfortable with that being the standard, then we'll live by it. But I think you need to ask yourselves.... We've all been to those dinners, and it's a pretty poor lobbyist who pulls a deck out halfway through a dinner and says “Can I go through my top 10 issues with you?” We all go to those for the same reasons you do—to eat the excellent chicken and listen to the excellent speeches, and then try to get home by 10 o'clock.

By and large, the activities that would be most harmed by a complete ban on gifts would be those activities that are the most benign, the charitable fundraisers and the types of gala events that we all go to, to support a cause. This is the opportunity to put some clarity around that, because there is a chill around these dinners around town. I know some of our members are feeling it. There are a lot of questions, and it will be up to you to answer them.

[W. Scott Thurlow]

If I could add just one sentence, I would define two things. I would define the monetary value that is the threshold and then I would define gifts. Make it a closed definition, not one that's open to interpretation.

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

Excellent. Thank you.

From an administrative perspective—while we have these legal minds in the room—when the commissioner is asked to contemplate launching an investigation, there's potential for public and external factors to create a presumption of guilt prior to her conclusions being made known. Do you see any way that we can mitigate a tax on reputation for purely partisan purposes? I think that's an important issue.

[Jim Patrick]

We're sensitive to the commissioner's concerns here. Anything that allows any officer of Parliament to ensure an accurate public record is worth considering.

Right now, under the letter of the act, MPs and senators are prohibited from disclosing or publicizing requests for investigations on breaches of the act by another MP or senator. Perhaps that prohibition should extend to any individual or entity who requests an investigation. I agree, it's becoming a trend. There's a request for an investigation and it's inevitably accompanied by a press release announcing the fact that there's been a request for an investigation. I would agree that that would put any officer of Parliament in an awkward position and, generally speaking, could be seen to compromise the integrity of the process.

[W. Scott Thurlow]

I would add one sentence—and this is me speaking not on behalf of GRIC, but on behalf of myself more than anything else. There is an equally important competing obligation that an individual who is accused of something has the right to face their accuser. This is not something that we have seen done in a way that is of satisfaction to many of our members, because they don't know where the accusation is coming from. There has to be that balance.

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

In fact, that was my second question.

[W. Scott Thurlow]

Oh. I'm glad I could help.

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

Nicely done.

In the event that you have a situation in which you have found no fault, if you like, how does the accused in that case have the chance to clear his or her name effectively? It's in the public record, so you have a situation that creates a very difficult environment for that person.

[W. Scott Thurlow]

Yes.

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

Is there any merit from your perspective in applying the Privacy Act to elements of the office of the commissioner? We're thinking of cases in which the commissioner is dealing with elements of conflict of interest specifically. Is there a place for the Privacy Act to be more active?

[W. Scott Thurlow]

I am notoriously pro-privacy, so I'll say yes. But I say that on my own behalf. This is not something we surveyed our members about.

Again, we're integrating yet another act into this. Statutes such as the criminal law obviously incorporate by reference definitions found in other acts. I would be very careful, when you're contemplating this kind of change, to make sure that you have concordance in definition among all of those acts.

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

It sounds as though a lot of legal opinions may be coming through on that one, when we get to it.

How is my time?

[The Chair, NDP, Pierre-Luc Dusseault]

You have 20 seconds.

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

Thank you for your time.

[The Chair, NDP, Pierre-Luc Dusseault]

We now go to Mr. Boulerice. You have five minutes.

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

Thank you very much, Mr. Chair.

I want to thank the guests for joining us today. Their answers and points of view are especially useful and thought-provoking.

As a parliamentarian, I feel that 90% of the people I meet are lobbyists. They are all asking for something. When I go to a seniors' residence, some of them want the mailbox moved closer to their door. Others want a sidewalk repaired. So certain definitions must be clarified, but our work basically consists in listening to claims and requests.

We know that some definitions are not the same in the Conflict of Interest Act and the Lobbying Act, even though they refer to similar matters. It is as though public administration had two separate systems, where it applied different rules to similar issues. The situation can become a bit schizophrenic.

It is clear that this creates confusion and that we need more consistency, but I would like you to give me some concrete examples of what you think is the impact of that confusion and different interpretations of a definition.

[W. Scott Thurlow]

The first thing I would tell you is that the senior in your riding who wants the sidewalk fixed, unless he or she is being paid by all the other seniors, is not a lobbyist. This is a constituent. This is something that we have seen from other affiants or people who are testifying in front of this committee, talking about what they've described as “volunteer lobbying”.

I want to be really clear that in order to be subject to the Lobbying Act you have to be paid. It's not an act that's subject to the situation you describe in your opening remarks.

The example that Jim spoke to in his presentation, about someone who is shopping for a specific type of interpretation in advance of whatever he is seeking to accomplish, is a good example of the conflict that exists here.

From my perspective, right now the two laws are bifurcated from one another, in that you will be placed in a conflict of interest if X, Y, or Z happens, but a lobbyist will be deemed to put you in a conflict of interest when W, X, Y, and Z happen. That should not be the case; there should be the one integrated provision.

The other interesting issue under the Lobbying Act is the interpretation of what conflict of interest is. There have been some questions about what political activities can raise a conflict of interest. In your question, Mr. Angus, you asked specifically about political fundraising.

Political activity, which was the object of the problem with rule 8, actually strikes at the very core of our fundamental charter rights concerning participating in the electoral process and freedom of speech and freedom of assembly.

I would be very wary of treading into those areas for fear of constitutional ramifications on both your constitutional rights as a member of Parliament and the freedom of speech that would apply to you, but also those of the volunteers and the people who support you in your home constituencies. If they are helping you, whether by putting signs on lawns or organizing a fundraiser, that's their political right; that is their section 3 right. To then prevent them ex post facto from exercising their section 6 right would be a problem.

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

You briefly talked about the loophole issue—the 20% rule. I find it's a bit strange that people decide on their own what percentage of time they have spent lobbying over the course of a week. That is difficult to check.

In addition, I don't think all lobbyists are the same. For instance, if Mr. Mulroney or Mr. Chrétien were to make one or two telephone calls a year, that could have a much greater influence than someone else spending 80% percent of their time lobbying.

However, if the 20% rule was eliminated, do you suggest replacing it with something else?

[Jim Patrick]

I think the first place to start on this question is that approaching government and petitioning government is a right, not a privilege. I don't think any legislative measure or any bureaucratic decision within the public service should try to remove that right from people.

Trying to shape the lobbying activities to conform with a legislative and regulatory framework is the prerogative of Parliament and its officers, and we recommend to our members that they follow all of that regime.

Our recommendation to eliminate the 20% rule as it applies to corporate in-house lobbyists is not, I can tell you, a unanimous recommendation. Many of our members came to us saying, “Are you guys nuts? I have friends who work for this company who are not going to be able to keep their jobs”, or saying, “I'd like to hire so and so, who is in government and wants to get out, and now I can't.”

We made that recommendation because we maintain that the rules should be the same for everyone and should apply equally to everyone. If I'm coming out of a minister's office, I can't work at a trade association, I can't work for a consultant lobbying firm, but I can work for a corporation doing exactly the same work, as long as I determine that it's 19% of the time.

As you rightly point out, that's just a recipe for confusion. We understand that it was meant as a guideline, but it's been treated as a loophole. We wouldn't suggest that you reset the level to create another guideline that could then be treated as a different kind of loophole.

[W. Scott Thurlow]

Let me complement what Jim is saying. First of all, if he spends two phone calls, he gets what he needs done. More importantly the 20% rule, such as it is, isn't a rule; it's a guideline, because it comes from an officer of Parliament and is not embedded in statute. The statute actually says a “significant portion of their duties”. It's a question of what your definition of “significant” is.

I always go back to my original statement, which is that the more specificity that can be found in the law, the better.

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

Thank you for your answers.

[The Chair, NDP, Pierre-Luc Dusseault]

Mr. Calkins will have the last five-minute period.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you.

Thank you, Mr. Patrick and Mr. Thurlow, for coming today.

I want to get back to the point you made about the chill in the air, because I sense it as well.

As a member of Parliament, I get invited every weekend to a number of events, some of which I can go to and some of which I can't, just due to conflicts in scheduling or whatever the case may be. On any given evening, I might be invited out to support some local charity that is part of a larger organization. If I want to take my wife with me, it wouldn't be unheard of for me to spend $200 just on two tickets—every week, twice a week, every month.

So I could be spending upwards of $1,000 just for the privilege of attending a political...or not really a political event, but an event in my riding. I'm invited because I'm the MP.

We have certain things and privileges in our member's operating budget. I don't really want to get into that, but we cannot use our member's operating budget to pay for any advertising or anything like it that is going to a third party charity. So then, as an MP, you're on the hook for the entirety of the ticket if you choose to go.

If you're not given an opportunity to go to one of these events and accept a free invitation for you and your spouse to go and attend this event, a lot of these organizations wouldn't have the presence of their members of Parliament, because even though we're paid well, paying upwards of $600 or $800 or $1,000 a month just for the privilege of going out and having a dinner with your fellow constituents does beg some questions.

As a member of Parliament, if we're not out here to meet people, whether they are registered lobbyists or not, whether they are a person with an issue.... Virtually everybody comes to you with, to use a word from a long time ago, their “petitions”. They want to have access to their member of Parliament. They want to talk to their member of Parliament. They want to engage their member of Parliament. And every member of Parliament should rightfully want that in return.

What I sense now, with all of the ankle-biting, I'll call it, and nipping at the heels, for example, of various...whether it's allegations or chasing something down, trying to tarnish the reputation of somebody. We have access to information requests, and we have people's names bandied about quite loosely with allegations coming forward that they may or may not have done something, but the optics of a story can do all the damage that needs to be done.

From the perspective of a lobbyist, it's been very clear that the act of lobbying is quite necessary and quite productive in the use of constructive dialogue and building a government that responds to the needs of its people. Member organizations of your companies work, they have jobs, they raise families: they do the things they need to do in order to be successful. Not every lobbyist comes with simply the intention of furthering their own personal ambitions. They're there to further advance the development of industries that support the backbone of our country.

I want you to just help me explain to the commissioner, or to make recommendations here, about some of the effects of clamping down too much on certain types of what are considered to be, I would think, normal practices in engaging the political process, and putting a chill on those.

I'm actually quite concerned about that.

[Jim Patrick]

I think your question is very appropriate.

We've heard already from organizations that this is the last year we're having this dinner, a dinner we've had for 14 years, because we just can't get people to buy tables; people can't buy tables because they don't think they can invite the people who work in government who they want to invite; this is why we do this dinner in Ottawa instead of Toronto or Montreal.

I think if there is going to be some level of prohibition on gifts—and this committee recommended a prohibition on gifts from lobbyists—the government responded in a way to suggest that they may be able to define gifts in a certain way to accommodate what I would call gifts within the bounds of normal professional protocol.

We haven't consulted our members on whether that's a $100 ticket or a $200 ticket, whether it's one a month or two a month, but you will need to do that. You'll need to go through that exercise, I would suggest, either together or individually as to what you're comfortable with. What do you feel is an attempt to unduly influence you versus an attempt to invite you to an event out of normal courtesy and protocol?