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.