Information & Ethics Committee on March 18th, 2013

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thanks very much, Mr. Chair.

Thanks, Commissioner, for being back with us again today.

We've been getting some answers but we've also been getting some more confusion involved in the situation. I don't think there is anybody sitting on either side of these tables who doesn't believe it is the right of any individual MP or organization to request a potential investigation.

Where the issue arises is how we handle it from there on, once the request is made. The process right now, in my understanding, is if I am making a request to you for an investigation, I can also release publicly that I'm doing it, and I think that is very harmful. We need to look at that portion of it. I'd like you to talk a bit about that. I know you've made some recommendations.

As well, once I have made the submission it's my understanding that you can broaden the aspect of what I have put forth in my submission. So you can add to that; I'd like to know under what circumstances you do that, and how that unfolds. Then if it's kept in confidence that there's an investigation going on, is there always a release tabled at the end of the investigation? Do people then know that, yes, in fact this was a frivolous investigation, or know that in fact this had merit to it?

It all boils down to how we protect the ministers and the reporting officers from frivolous and partisan attacks. I'm not saying it's one party against another. It can happen to any party. I just want to know how we can do that.

[Mary Dawson]

Okay, that's about four questions all wrapped up but I'll try to answer them.

Basically I have recommended that there be a prohibition against members who have requested an investigation making that public until I've had a chance to receive the request and let the person who has been complained about know. Then I would immediately let the person who complained about it know and then he's free to talk.

There is a distinction between the investigations that are done on request and the investigations that are self-initiated. Sometimes if a member comes in and requests what is called an investigation under the act be instituted, it would be possible for me to join that in any particular case with some other infraction that was related, that I might also investigate at the same time. Occasionally that happens in some of my investigations.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Can you give me an example? I'm not quite sure I understand that.

[Mary Dawson]

Off the top of my head, I don't know. If a member comes in and says a person has fundraised in contravention of the act, in the course of looking into the matter I may see very quickly that not only have they fundraised but they have voted in the House where they shouldn't have or something. That's not necessarily related. I can't think off the top of my head, but sometimes in the course of looking into something very quickly it will become apparent that there is more involved than just the one thing that has come to my attention.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

So it's usually quite apparent? It's not an issue of delving in and looking for something else, or trying to find something else. It's usually sitting out there?

[Mary Dawson]

Probably in talking to the person complained against, it might come to light. They might not even realize they had contravened another section. Just looking at the act I might see some other thing that ought to be dealt with. It could happen in a number of ways. It doesn't happen that frequently, but it does happen from time to time.

You were also concerned about reporting on the examination. The rule is I must release a report on an examination in all cases, but in the case of an examination I have initiated myself, I can discontinue that without issuing a report. If I discontinue one that was requested, I must issue a report.

I think there's quite a rational reason for that because if I self-initiate something that nobody has requested, and I find there's nothing to it, then why would I put out something and suggest where there's smoke there's fire? Usually those things come to me from the media or from private citizens. In some cases I would not release a report, but those are the only cases. If a member or a senator requested it, a report would come out.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

You said—

[Mary Dawson]

—if it were a valid request.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

You said you are recommending a prohibition against publicly notifying or publicly giving a press release if I had initiated a request to you. I shouldn't be sending that out at the same time as a press release or whatever.

Would that be something where we would need to have more penalty involved, such as, if you do that the case gets thrown out? It becomes frivolous. It is seen as frivolous. Or do you think just saying, “thou shalt not do it” is enough with no penalty?

[Mary Dawson]

I had added if some administrative monetary penalties were established beyond failures to meet deadlines, that would be a perfectly good example that could have a penalty attached to it.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Don't you think it would be more effective though if it were a penalty that says, “if you do that, we throw it out”? It becomes of a frivolous nature.

[Mary Dawson]

Both things would probably happen.

Interestingly I have never found a frivolous request to date. There's always something there to look into; the possibility is there. I've never found there was something seriously silly, enough to say it was a frivolous request.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you.

Mr. Andrews, you have the floor. You have seven minutes.

[Scott Andrews, Liberal, Avalon, NL]

Thank you very much, and welcome back, folks.

I'd like to go back to Minister Duncan's conflict of interest for a quick second. I know you don't want to comment specifically on the case, but could it possibly be that this could be one of the areas where, when it came to your attention, not through a member of Parliament or such, you would never have to have reported on it?

It seems as if that particular circumstance has gone on for a long time. No one knew about it until the minister himself declared he had been in this conflict of interest.

Couldn't that have gone on in your office without your reporting on it, if it hadn't been initiated by a member?

[Mary Dawson]

Yes, it could have, I guess, but things happened so quickly in that particular case that by the time he resigned there would have been no purpose in carrying out an investigation.

Did you ask me whether I was investigating?

[Scott Andrews, Liberal, Avalon, NL]

Were you asked to investigate?

[Mary Dawson]

No. I didn't....

[Scott Andrews, Liberal, Avalon, NL]

I didn't think you had.

[Mary Dawson]

No, I did not initiate an examination on that.

[Scott Andrews, Liberal, Avalon, NL]

And the facts on that only came out after the minister had self-declared he was in a conflict.

[Mary Dawson]

Yes.

[Scott Andrews, Liberal, Avalon, NL]

I'd like to go to the Canadian Bar Association. I know you have said you have reviewed a lot of the recommendations.

They had 18 or 19 recommendations. Are there any in there that you think we should look at? I'll have questions about a couple of them if they come up.

[Mary Dawson]

Gosh, I can't remember what those 18 recommendations were in that case.

Do you have one in mind?

[Scott Andrews, Liberal, Avalon, NL]

Yes.

I do have a couple in mind, recommendations 15 and 16, regarding monetary penalties. They actually suggest giving the commissioner the authority to impose an administrative monetary penalty for any contravention of the act, and the second part is that it should be increased to a maximum of $25,000.

You haven't given us any values. What do you think of their recommendations?

[Mary Dawson]

I'm much less turned on by penalties than I am by public reporting. I think I've said that before. I think what's important is the public report and the light being shed on whatever has been done wrong.

I think there is a place for administrative monetary penalties in the case of people who simply don't get their reports in on time, and it would be another mechanism to deal with contraventions where it wasn't worthwhile doing a full investigation. If somebody admitted they'd done something wrong, it would be an easy way to deal with it expeditiously.

I made a distinction in my last submission between administrative monetary penalties and penalties for things that were found to be a contravention. I recognize it seems that there's a 50-50 split out there as to whether big penalties should be imposed when somebody is found to have contravened. Personally, I don't think they're that important, but some people think they're really important.

The other issue is that it would become a different system, I think, if there were serious big penalties. It would become a criminal offence probably, and there's a question as to whether that belongs in the type of office that I now have.

In the context of the act that I'm now administering, I don't think penalties are necessary with the contraventions.