Information & Ethics Committee on March 18th, 2013

[The Chair, NDP, Pierre-Luc Dusseault]

Order, please.

Welcome to the 70th hearing of the Standing Committee on Access to Information, Privacy and Ethics.

In the context of our review of the Conflict of Interest Act, we welcome Mr. Dodek, who is a professor at the University of Ottawa in the Common Law Section.

As usual, witnesses will have 10 minutes for their presentations, and a question and answer period will follow. This will last about an hour in total. As you may have noted when you read the agenda, we will be hearing other witnesses later.

Without further ado, I will yield the floor to Mr. Dodek so that he can make his presentation.

Mr. Dodek, thank you for being here with us.

[Professor Adam Dodek, Professor, Common Law Section, University of Ottawa]

Mr. Chair, members of the committee, thank you for this opportunity to address you today.

I apologize for not being able to attend the previously scheduled appointment with the committee. Unfortunately, I was sick and would prefer not to go into further details of that on the record in Hansard.

Today I will testify in English. I will try to reply to your questions in English as well as in French.

There are three issues I would like to address in my testimony today: first, the need to amend the Conflict of Interest Act to codify certain provisions of the guidelines included in the document “Accountable Government: A Guide for Ministers and Ministers of State”; second, the need for changes to sanctions available to the Conflict of Interest Commissioner; and third, the need to set clear timelines for compliance with specific provisions of the act, and to make public notification when office holders have failed to meet those deadlines.

Before I address those issues, I would simply like to make members of the committee aware of the background I bring to my testimony on the review of the Conflict of Interest Act today. As the chair of the committee informed you, I am a law professor in the common law section of the University of Ottawa's Faculty of Law. I'm a member of the public law group at the Faculty of Law, and my two chief areas of research are one, public law and government; and two, ethics of the legal profession including judicial ethics. Today's subject obviously lies at the intersection of these two research interests. I've written about ethics in government, particularly concerning lawyers in government.

Prior to entering academia, I was a political staffer for three years in Ontario, between 2003 and 2006, first as senior policy adviser and then as chief of staff to the Attorney General of Ontario. As a political staffer, I was subject to certain conflict of interest provisions and the jurisdiction of the then existing conflict of interest commissioner. As chief of staff to the Attorney General, I had frequent interactions with the Office of the Integrity Commissioner of Ontario on behalf of the Attorney General, who, as a member of provincial Parliament and as a minister, was subject to provisions of the Ontario Members' Integrity Act. I believe you heard from the current Integrity Commissioner, Lynn Morrison, who I had frequent contact with during those years.

Finally, in 2009 I had the opportunity to serve as a research consultant for the Institute of Public Administration of Canada on a CIDA-funded project known as the deployment for democratic development. I worked under the supervision of former deputy minister Mary Gusella on a law reform project in Tanzania, related to conflict of interest in government. Our team analyzed conflict of interest provisions across Canada, the United States, countries in Asia and Africa, and within the UN and the OECD.

With that background, let me turn to my submissions.

First, I recommend that the act be amended to codify certain provisions of the guidelines included in the document “Accountable Government: A Guide for Ministers and Ministers of State”. Recent events have demonstrated the need to amend the act to include an express prohibition on public office holders contacting courts or quasi-judicial tribunals, seeking to promote the interests of private individuals.

Section 9 of the act prohibits public office holders from using their positions as public office holders to seek to influence a decision of another person, etc. As you know, the commissioner has interpreted this provision—rightly, in my opinion—as prohibiting public office holders from writing letters on behalf of individuals in support of applications before quasi-judicial tribunals. In one such compliance order, the commissioner cited provisions from the document “Accountable Government”. That document contains some of the most important legal, constitutional, and ethical prohibitions on ministers and ministers of state. However, it does not have the force of law. As it says, it is only a guide. I recommend that the act be amended to clearly set out, first, that all public office holders be absolutely prohibited from intervening or attempting to intervene on behalf of any person in any court proceeding, and second, that all public office holders be prohibited from intervening or attempting to intervene on behalf of any person in any quasi-judicial proceeding.

On the quasi-judicial point, I think the guidelines are extremely comprehensive, and I would simply recommend them to members of the committee for their consideration.

On interference or attempted interference with court proceedings, I feel compelled to say a few words because of some of the comments that were made in response to the recent resignation of a minister of the crown for providing a character reference to the tax court on behalf of a constituent. Under our system of government we do not have a formal separation of powers, as they do in the United States. What we do have is certainly a strict separation between the judicial branch and the other branches of government. With the exception of directing a reference to the courts, the executive or the legislative branch simply cannot direct the courts in what to do. History teaches us that when executive control over the courts happens, that is often the beginning of tyranny, as recent events in Pakistan, Zimbabwe, Egypt, and elsewhere have demonstrated.

In Canada, we are proud to have a strongly independent judiciary respected by Canadians and people across the world. It's incumbent upon us to ensure there are no encroachments on public confidence in our independent judiciary. Public office holders exercise power in trust for the public. They simply have no business attempting to intervene with the operations of the judicial branch on behalf of anyone. I don't think, as some commentators in the media have said, that this was simply an issue of no harm, no foul. It's about protecting the integrity of both the judicial branch and the executive branch, and I think it is far too important to be left to guidelines issued by the executive. This imperative of non-interference in judicial matters should be enshrined in the Conflict of Interest Act.

Second, I recommend that the act be amended to repeal the provisions related to administrative monetary penalties. I believe that the current level of $500 is simply not commensurate with the importance of the issues contained in the act. This low level risks equating conflict of interest and ethics issues to parking tickets, or perhaps to speeding tickets.

I don't favour increasing the administrative monetary penalties to a level that I think would be commensurate with the importance of these issues, which in my mind would be at least $10,000, because I fear that that would lead to greater judicialization of the act. Although I'm a lawyer and a law professor, it is not my brief today to seek further employment opportunities for our students. Instead, I believe the strongest sanctions the commissioner has at her disposal are her moral authority and the power of condemnation. I would like to see the act amended to increase the powers of the commissioner in two specific ways: first, to issue a formal reprimand against a public office holder for violation of any provision in the act; and second, to send a copy of any decision regarding a public office holder to the minister responsible, or, in the case of a minister or a parliamentary secretary, to send a copy of any decision to the Prime Minister, and require a response from the minister or the Prime Minister as to how they propose to deal with the violation within a set period of time.

Finally, I recommend that the act be amended to require the commissioner to publish the names of those who are not in compliance with various reporting provisions of the act. In her 2011-12 annual report, the commissioner reported that in the prior fiscal year, 53 out of 299 new reporting public office holders did not complete their confidential reports within the 60-day deadline. That was an increase from the previous year. The commissioner does have the power to issue administrative monetary penalties for such non-compliance, but I think is understandably hesitant to do so. I recommend that the act be amended to require every appointing body or person to notify the commissioner of an appointment of a public office holder within seven days of their appointment. I further recommend that the act be amended to require the commissioner to publish the names of those public office holders who fail to meet specific deadlines set out in the act. I would expect that the media and the opposition would be interested in such a list, and that such a list would be considered a list of shame. I would hope so.

I believe that such a process would provide a strong incentive to all public office holders to meet the deadlines set out in the act. I can tell you that's certainly my own experience as a lawyer subject to the jurisdiction of the Law Society of Upper Canada, which publishes a notice in Ontario Reports of lawyers who have delayed in paying their fees and have thus been administratively suspended. That document is distributed free each week to all of Ontario's 44,000 lawyers.

As the chief of staff to the Attorney General of Ontario, the province's highest lawyer, I had a recurring nightmare that we would forget to pay the minister's dues and we would see his name on that list. I knew that if that day were to come, it would be my last day on the job.

I suggest to you that a similar process under the Conflict of Interest Act would provide a stronger incentive for timely compliance than that which currently exists under the act.

Thank you, and I look forward to your questions.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you for your presentation.

We will now have questions.

Mr. Angus, you have seven minutes.

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

Thank you, Mr. Dodek, for coming.

This has been very interesting, and I think some of your suggestions are somewhat provocative to consider.

I don't know if we'd have to call this the “shame list” that you call it, but insisting that people have to take this seriously, that this is not a pro forma but is part of their contract with the people in terms of being accountable...are you suggesting this would be on top of administrative monetary penalties? Or do you think this would be a better system for dealing with people to be in compliance?

[Prof. Adam Dodek]

I think it would be a preferable system than the currently available administrative monetary penalties. As I set out in my testimony, I'm not supportive of the current administrative monetary penalties. I think that a monetary penalty of $500 is simply not at a high enough level to be commensurate with the importance of the issues in the act, and to me that leads one to go in one of two different directions.

You've heard testimony from various witnesses, including from representatives of the Canadian Bar Association, who favour far more stringent administrative monetary penalties. My fear with that, and why I do not support that, is I believe that would lead to a more antagonistic environment between public office holders and the commissioner and the commissioner's office. Instead, I think there are other available sanctions or incentives that would achieve the goals of the act in a preferable manner.

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

One of the issues we've been dealing with is this. We have the accountable government. We have the code. We have the members' code. We have the lobbying commission rules. We have Madam Dawson's code. These are not always exactly lined up and we're being told we should harmonize them. But it seems that the question is, how do we harmonize them? Do we harmonize them to a lower standard or to a higher standard?

It was interesting when we had Madam Shepherd here and she talked about her 2010 report on the lobbying activity of Michael McSweeney and Will Stewart. She found that the lobbyists were in breach of rule 8 for putting the minister in an apparent conflict of interest. Madam Dawson didn't feel they had done anything wrong, because with having lobbyists hold a fundraiser for a minister, the minister wasn't getting the money personally; therefore there wasn't an issue.

How do we deal with differing interpretations of the same situation by the Commissioner of Lobbying and the Ethics Commissioner?

[Prof. Adam Dodek]

I would agree with what I think is the premise of your question, which is that it is a challenge, certainly for the commissioner, to administer different pieces of legislation in terms of the Conflict of Interest Act that you're reviewing, as well as the members' code. Then there is a further problem with a different person administering the Lobbying Act and lobbyist registration. I think it would be preferable to harmonize different provisions in one piece of legislation. It may set out different standards for different officials, and I think that's fine.

But in the case you're talking about, I think it is problematic to try to explain to a member of the public how, for the same event, a lobbyist can be found to have done something wrong, but a minister has not done something wrong from exactly the same event. I don't know the specifics of that provision and that case, and I'm certainly not judging either the lobbyist or the minister involved in that, but I think it is very difficult to explain to the public how that could be.

I think in terms of good governance and your duty to the public to legislate in the public interest, the clearer the provisions can be—and if they can all be found in one piece of legislation—the better it would be for the public.

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

I was interested in your comments about section 9 because we've had some very divergent views on the obligations of ministers and public office holders in terms of writing or interfering with semi-judicial bodies. Minister Duncan has just resigned because of this. Minister Flaherty was censured by the Commissioner. Some of my colleagues thought he was just acting as a normal member of Parliament.

How important is that code? How much can we leave that up to interpretation of whether it's good for one, not good for the other? Is it a fundamental principle that members of cabinet should be held to?

[Prof. Adam Dodek]

I think it is a fundamental principle. I think the Prime Minister and various prime ministers have identified it in the guidelines Accountable Government as a fundamental principle for ministers and ministers of state. I think it is preferable to set out those principles or those provisions in law rather than to leave them in guidelines.

The principle of non-interference or perceived non-interference in judicial matters certainly goes back a number of decades in Canada, and there have been serious consequences for ministers of various political parties who have run afoul of that provision.

That is why I think it should be expressly articulated in the Conflict of Interest Act.

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

So you support the provisions in the accountable government guide, but you feel they should be put right into the rule of law within the act itself?

[Prof. Adam Dodek]

Yes.

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

Are there specific elements that are not in the act now that you feel in particular need to be brought forward?

[Prof. Adam Dodek]

The document, Accountable Government, is a very long document and contains many provisions. The two provisions I focused on were the ones dealing with non-interference of ministers and ministers of state in judicial matters and in quasi-judicial matters. There is quite an extensive explanation in the guide relating to quasi-judicial officials, quasi-judicial proceedings, which tend to fall under the authority of another minister.

I tried to speak to the importance of non-interference in judicial matters because a lot of people....I certainly didn't see this from elected officials, but in the blogosphere, or the Twitterverse, or the media, some commentators said the last place an MP or a minister of state or a minister could interfere is a court, because our courts are so strongly independent. There's really no harm, so why should we be concerned about that? A judge is simply going to toss out a letter from a minister. It may actually hurt that person's case.

My response to that is I think ordinary citizens rightly see you who come to Ottawa as exercising public power. I certainly see this from my students, and I think many Canadians don't necessarily know the difference among members in the different branches of government. I think there is an unfortunate tendency for many Canadians to think people in government, or people in one political party, are helping people in another political party, or judges will help people in government, etc. That's why I think it is necessary to have that prohibition, to make it very clear and to have a clear separation between the functions of the executive—the functions of ministers and ministers of state—and the functions of the judiciary.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you.

I now give the floor to Mr. Carmichael for seven minutes.

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

Thank you, Chair. Good afternoon, Mr. Dodek.

Just following up on your comment with regard to the guide and your focus on the two provisions with regard to non-interference, would you say that the current definition is too vague and that by becoming more specific and better defined the problem would be solved?

[Prof. Adam Dodek]

I don't know if it would necessarily solve the problem.

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

Let me correct that. Not so much solve the problem, but would it give the affected members a better understanding of what the definitions and guidelines are specifically?

[Prof. Adam Dodek]

Yes, I think the legislation should provide clear notice to public office holders, and especially to ministers and ministers of state, as to what sorts of conduct are considered to constitute conflicts of interest. So right now, what you see, and what you've seen in some of the rulings from the commissioner, is her reference to some conduct that is set out as prohibited under the guidelines. What she has done is essentially incorporated that by reference into the definition under section 9 for conflicts of interest.

I think if some activity has been accepted for, I would say, at least the last 20 or 30 years, as constituting a conflict of interest or prohibited activity by successive prime ministers in the instructions that they have given to their ministers and ministers of state, then certainly now, 20 or 30 years later, we're at the time where it is appropriate to explicitly spell that out and prohibit that in legislation.

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

Clearly, our job in reviewing the act is to do just that, to ensure that we provide a better road map, a better guideline, a better set of guides, that assists all of our members in doing their jobs appropriately, and without confusion, which is a part of it that concerns me.

I just wonder, are there any other definitions in the act as you've studied it and you know it that you would feel are just too broad, or just simply not specific enough, and that we should be focusing on or paying attention to?

[Prof. Adam Dodek]

Without pointing to any specific provision that comes to mind, I would say that—on the theme of giving fair notice to public office holders, many of whom are government and council appointees, many of whom may never have held public office before and may not be familiar with the sorts of guidelines that exist for ministers or ministers of state—to the extent that legislation is able to set out prohibited activities, I think it's something that would assist public office holders. I think it's something that would assist the commissioner, and I think it's something that would assist public confidence in ethical government.

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

Along the same theme, then, are there other jurisdictions you're aware of that we should be perhaps reviewing or paying attention to that are taking some of these provisions to a level where we should be more thoughtful?

[Prof. Adam Dodek]

I know that you heard from the Integrity Commissioner in Ontario, as well as the commissioner from British Columbia, about the different experiences and different levels of detail in those two acts. I certainly know from the research I did on the United States that there is an incredible level of detail, and I would say very severe sanctions as well, in the United States. I think it's worth looking at the United States, not necessarily as a model to follow every provision, but I'm a strong proponent of comparative analysis for getting ideas and asking ourselves whether we are doing the right thing in a particular provision.

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

Right, thank you.

You talked about repealing the current administrative monetary penalties in favour of more severe penalties, or stronger sanctions, and you listed the direction that you would look at that. When you start talking about monetary penalties, is there a place where a certain amount is just too much in this consideration, or is there an area that should be considered reasonable, as we consider how to approach these final decisions that we have to make?

[Prof. Adam Dodek]

As I stated before, I'm generally not a proponent of the administrative monetary penalties idea. You heard from various other proponents as to what they thought were appropriate levels, and the reasons why they favoured administrative monetary penalties. I think whatever the level is, $500 is obviously too low. My concern, again from the experience in the United States where there are very high fines and sanctions, is you create a legalistic structure and an antagonistic structure. From my experience in Ontario and seeing elsewhere, I think what you want to do is not create a regime where you are essentially creating an ethics officer or the conflict of interest commissioner who is another regulatory official. In this case, public office holders have to deal with this official in the same way that public companies have to deal with the Ontario Securities Commission or the Alberta Securities Commission.

If the goal of the Conflict of Interest Act, which was originally part of the Federal Accountability Act, is to foster accountability for the exercise of public power and to create an ethical environment in public office holders so that the public increases its confidence in public officials, then I think there are other ways you can do this that are more cooperative and are more positive than necessarily levying very large fines for non-compliance.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you.

I now give the floor to Mr. Andrews for seven minutes.