Evidence of meeting #69 for Access to Information, Privacy and Ethics in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was ontario.
A video is available from Parliament.
Liberal
Scott Andrews Liberal Avalon, NL
Thank you, and welcome to the commissioners today.
I'd like to dive into the apparent conflict of interest. It was a recommendation out of the Oliphant commission, Ms. Morrison. I'm sure you're familiar with it.
Does your act deal with apparent conflict of interest? Is it something we should look at in ours? I know Commissioner Dawson has said it's implied, but the Oliphant commission recommends that we put it in. What's your perspective on that?
Integrity Commissioner, Office of the Integrity Commissioner of Ontario
I agree with Commissioner Dawson's approach on that. It doesn't need to specifically be added to the definition of conflict of interest. We don't have the terms in our legislation, and our system works very well. Our act provides me with all the tools I need to give the advice that I think is necessary and appropriate under the circumstances. As Commissioner Dawson said, it is implied in her legislation. If you put it in....
Perhaps Commissioner Fraser is better able to speak to that because he does deal with “apparent”.
Liberal
Scott Andrews Liberal Avalon, NL
I know you mentioned it in your statement, so I'd like to get into it.
Commissioner, Office of the Conflict of Interest of British Columbia
British Columbia has it embedded in our section—it's a separate subsection, in fact—and it tracks the language that was used in the Stevens inquiry, where the judge there, in the Stevens commission, identified a definition of what is a conflict of interest. He bifurcated it into what was a direct conflict of interest and what is an apparent conflict of interest. The language in that commissioner's report has basically been imported right into our act.
I think the imperative here is that inasmuch as some of our pieces of legislation across the country now have the apparent conflict legislation in them, and inasmuch as the public, I'm bound to say, in looking at conflict of interest, thinks largely in terms of perception and makes no apology for that—if something stinks, as far as the public is concerned, that's enough; you can slice the salami as thin as you want, but if it stinks and it's perceived to stink, there it is.
I think it would be for us a situation where there's no way back. I think the public is invested in apparent conflicts of interest, in the sense that it confirms for them that if there is a suspicion or if there's a taint, then that's enough for an investigation.
What's important, though, in dealing with what the definition of apparent conflict of interest is, is to know that the definition under the section is very objective. A perception may be very subjective, but whether or not the perception of a person matures into a finding that there was an apparent conflict of interest is in this case to be judged against the following language:
For the purposes of this Act, a member has an apparent conflict of interest if there is a reasonable perception, which a reasonably well informed person could properly have, that the member's ability to exercise an official power or perform an official duty or function must [not may] have been affected by his or her private interest.
When you listen to how broadly that's cast, I think you can at once get a sense that a mere perception isn't going to be nearly enough to conclude that there is a conflict of interest, but the fact that there is an appearance of a conflict of interest is enough to bring it before us. A full-blown direct conflict of interest sometimes means that you have to have a picture of the money being handed over. That's how the section is drafted. That's how the section is working.
The issue is still on foot. I think you've heard any number of very accomplished observers tell you what they think, and they've all uniformly agreed with Oliphant in the whole issue of whether or not conflict of interest or apparent conflict of interest should be included in the legislation.
With your leave, I want to read to you, though, the contrary view, which was articulated by Chief Justice Evans, the first commissioner from Ontario, in 2001. This is what he said in discussing this general subject matter:
Proof of a breach or complicity in a breach of the Members’ Integrity Act must be based on facts rather than conjecture, suspicion, or affinity based on friendship, common interest or political affiliation. A person’s reputation, irrespective of his station in life, is important and if it is to be impugned, there must be evidence to support that challenge. The perception standard of morality which some suggest should be the test applied to politicians would require that a legislator should not engage in conduct which would appear to be improper to a reasonable, non-partisan, fully informed person. The problem with such an ‘appearance standard’ is that there are few, if any, reasonable, non-partisan, fully informed persons. One person’s perception of another’s conduct is a purely subjective assessment influenced by many factors including the interest of the individual making the assessment. It is not the proper criteria by which the conduct of a legislator should be measured.
That's what Chief Justice Evans had to say in 2001.
I suspect, and Lynn will forgive me because he was her mentor, that if Chief Justice Evans were here today—and I wish he were—he would probably agree that given the transparency that our modern press has brought to the piece, given the reporting that has gone on of decisions that have been taken by commissioners and so on, we have passed a point, frankly, of no return. I think that's what the various professors who spoke to you were really trying to say. If at the end of the day we want this kind of legislation to succeed, if we want it to work, we don't have to evangelize the public, but we have to get the public invested in it. To me, that investment is more secure if we have an apparent conflict of interest provision right in the act.
I don't disagree with Commissioner Dawson at all when she says, as a matter of reading of her act, that there are within it already words that amount, when you look at them, to the same sort of thing. I do think, though, that for more than public relations purposes, but in order to protect the integrity of our modern legislation, it's better to have it in there.
NDP
The Chair NDP Pierre-Luc Dusseault
Thank you for your answer.
Ms. Davidson still has three or four minutes. However, we need to give the members of Parliament at least 10 minutes to get to the House of Commons. It is a bit of a walk.
NDP
The Chair NDP Pierre-Luc Dusseault
Great. I will let you go vote.
I would like to thank the witnesses for coming here to answer a few questions. It was very interesting.
Would the members of the committee want to come back after the vote? I got the impression that we didn't want to discuss the confidential report and that we were going to postpone it instead.
I will therefore adjourn today's meeting. We will meet again on Monday, in a week and a half. Thank you.
The meeting is adjourned.
