Information & Ethics Committee on March 18th, 2013

[Scott Andrews, Liberal, Avalon, NL]

Thank you very much, Mr. Chair.

And welcome, Adam, for being here today.

I'd like to have a little chat about the accountability guide for ministers.

It is exactly that, a guide. “Maybe I'll follow it, maybe I won't follow it.” There are really no teeth to it. I find it quite amusing when I read the guide and it says that ministers must answer all questions to the best of their ability in the House of Commons. We don't see them following that rule. Very often they get up and speak on their talking points.

Is there anything else in the guide that we should take out of the guide and put right into legislation?

[Prof. Adam Dodek]

Unfortunately, I didn't bring the guide with me and I didn't address myself to looking specifically at that issue. There are many things in the guide that are accepted practice, again by governments of various political persuasions, that have risen to the level of accepted practice or, let's say, constitutional convention that could be put into legislation without getting into a debate as to whether they are accepted or not. So the principle of non-interference with judicial matters is just one of them. I apologize, but I don't have other examples.

[Scott Andrews, Liberal, Avalon, NL]

With the non-interference with judicial and quasi-judicial, are you suggesting that apply to all MPs, not just ministers and cabinet ministers?

[Prof. Adam Dodek]

I think the problem with that principle, and the distinction between an MP's role representing their constituents and an MP's role as a minister or a parliamentary assistant or minister of state, is, again, the public has difficulty distinguishing between those roles. They rightly see a person who represents a constituency, a geographic constituency, a riding, who also happens to be the minister with responsibility for a particular portfolio. I don't think that the problem is cured by a minister signing something as an MP instead of as a minister. In some ways it might be beneficial to MPs if they were able to just say to their constituents, “You know what, I'm sorry, I really would like to help you, but I can't. I'm prohibited by law from doing this.”

I think that probably most MPs know that writing a letter on behalf of a constituent to a quasi-judicial...or certainly in a court proceeding is likely not going to have much impact, if any. In some ways it could get MPs off the hook from that.

I would favour probably a broader prohibition than even the one that exists now in the accountable government.

[Scott Andrews, Liberal, Avalon, NL]

I think you're dead on the money because people don't see the difference between MPs and ministers; they see them as politicians. The politicians should know that just because they don't put minister before their name and MP is after their name, they are still ministers when they sign a letter. People don't distinguish between the two. It's not something people would recognize. You are still a minister of the crown, whichever way you try to cut it.

When you were talking about shame and increasing the monetary penalties, you made reference that you hoped the Prime Minister would respond to the Ethics Commissioner on what course of action they would take. We don't see any response or acknowledgement when it does happen.

How would you compel the Prime Minister to take action on something that came from the Ethics Commissioner?

[Prof. Adam Dodek]

As I envision it, and as I would propose it, the minister responsible for the public office holder, or in the case of ministers of the crown, the Prime Minister, would be required to deliver a written response within a certain time period to the commissioner, which would be made public.

It may be that the response from the Prime Minister or from the minister might be, “I've spoken with the minister. He understands what he did was wrong, and certainly he won't do this in the future”, or—

[Scott Andrews, Liberal, Avalon, NL]

That's the system we have now. That's how it unfolds now.

[Prof. Adam Dodek]

I think with the system now, no response is required. By requiring a response, I think it at least requires the person responsible for that public office holder to publicly be accountable for that public office holder.

[Scott Andrews, Liberal, Avalon, NL]

The Bar Association made reference to wanting a different penalty regime and making it criminal in nature, and setting the bar for politicians the same as they would for any other public servant.

Do you see that as problematic, or is that something we should look at? We should be setting the bar to every other public servant, and it should be criminal in nature if you don't follow the rules.

[Prof. Adam Dodek]

I think there are some activities that could be violations of the existing Conflict of Interest Act which could also be violations of the Criminal Code. If they are that serious in nature, then they may be something the commissioner should simply refer to the police for investigation.

Again, I am hesitant to recommend making the Conflict of Interest Act more criminal or quasi-criminal in nature. I think the best work that can be done in fostering an ethical environment in the exercise of public power is to be more supportive rather than punitive.

One of the buzzwords in regulatory administration these days is “ethical infrastructure”. Whether it's in law firms or accounting firms, or I would say in public office as well, it's about creating structures to foster ethical decision-making and the ethical exercise of power. I think that involves things like giving the commissioner more resources to be able to do more educational work, to spend time personally with public office holders, to issue opinions or interpretative bulletins on what constitutes a conflict of interest under section 9 of the act, again, to give notice to public office holders and to members of the public as to how the act is going to be interpreted and how to avoid getting into difficulties under the act.

I know the commissioner does that already, but in my mind expanding those works of the commissioner under the act is the way to go rather than expanding the punitive nature of the act.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you.

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

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Thank you very much, Mr. Chair, and thank you, Mr. Dodek, for being here today.

You mentioned that prior to your current employment, you were the chief of staff for the Attorney General in the Province of Ontario. I want to ask you some questions about the post-employment provisions of this and get your feedback because you've been there. You've lived it, not under the federal rules but as someone who has worked within government as a chief of staff. Had you been a chief of staff to a federal minister, you'd be covered by those post-employment provisions.

From what you see in the current legislation, what's your view of those rules? As I understand in most cases, it's a five-year prohibition from literally any interaction with government regardless of whether it was the ministry in which you were involved or any other involvement you had. I think one of the goals of this committee in doing the five-year review of the act is to determine how we can make the act better, more relevant. What have we learned in five years, what can we learn to make the act fairer, stronger, and more transparent?

Have you got any comments about the whole post-employment issue, whether you think we've struck the right balance under the current rules or whether you've got any other advice for the committee?

[Prof. Adam Dodek]

I would start off with the caveat that in my case, my post-government employment was in academia. Leaving government service was very easy for me. Whether it was a one-year prohibition in Ontario, I had no involvement with government.

In my mind the five-year prohibition is too strict, too severe. I think that unfortunately in Canada, we don't value public service. We don't value running and serving in elected office or working in a minister's office or in the public service the way that some other countries do. I think it is a challenge to recruit good people to run for office, to serve in a minister's office, and to work in the public service.

I think it is appropriate to maintain a permanent ban on lobbying in any case in which a public office holder had confidential information or personal involvement, but things change very quickly in government, and government, as you certainly know, is very big. So the idea that somebody who may have worked in one ministry would somehow be given an unfair advantage in lobbying another ministry, I think may be more marketing to clients than reality.

So I think the five-year ban is probably overly broad in striking an appropriate balance between the need to recruit good people to run for office and serve as public office holders and fairness to those people in what they do after leaving public office.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

You mentioned that your post-employment was academia. You didn't really have any direct interaction with the provincial government after you left their employ, but should former reporting public office holders be prohibited from going to work for what I would call non-partisan agents or officers of Parliament?

We're always having difficulty with this distinction over who you go to work for after you leave here, and are there differences? If you're going to work for a “big lobby firm” with big commercial contracts, is that different from going to work for an NGO or becoming an independent officer of some agency?

Can you give us any advice from your perspective? Can we make those distinctions or is that just too difficult to do; it's just better to have this as the rule? You said five years is maybe too long. Let's say, two years is the rule and that's it, it keeps things clear and simple, or do you think, if the committee proposes recommendations to the government for amendments to the current legislation, we can write legislation that might be able to distinguish different areas as to what reporting public office holders would do in their post-employment?

[Prof. Adam Dodek]

It is probably challenging, but you could probably do that. Again, I don't have an example offhand that I can think of, but you could certainly draw distinctions between lobbying government generally, and a broader or a longer restriction on any involvement with the ministry or the office that one used to work for or was responsible for.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

This is the last question I'll ask, because I know my time will probably be up, Mr. Chairman.

I realize this act is about certain reporting office holders; it's not regular MPs like me, it's cabinet ministers, and parliamentary secretaries, and other people. One of the things we are struggling with is this whole gift issue and the right level for gifts and what are appropriate gifts and not appropriate gifts. We've heard from Mr. Angus about all the snow globes he has in his office and so on. We all struggle with what is acceptable and what's not acceptable, what money level is right or not, but, as a backbench MP, for me, it's not really the same as a reporting public office holder, not that I get many gifts at all, which is probably not surprising.

Having said that, the commissioner has suggested lowering the disclosure threshold on gifts to as low as maybe $30 from $200. You mentioned a $500 penalty, and that it is not really about the money but is more the disclosure and the public reporting of stuff. Do you have any views around this whole issue of gifts and the levels? Have you any advice for the committee?

[Prof. Adam Dodek]

Sure. I have a number of comments about the issue of gifts. First of all, we spend too much time talking about gifts. From my observation of the federal level and certainly what I saw at the provincial level in Ontario, I don't think it is a major problem. I would like to see the committee, and the act, and the commissioner spend more time on prevention, creating the ethical infrastructure sorts of things that I talked about.

Second, there is a problem that I believe the commissioner identified. The act prohibits public office holders from accepting any gifts that are meant to impact, or to attempt to impact, upon the public office holder's decision-making, but a different provision of the act requires the disclosure of any gifts that cumulatively are more than $200. In effect, they get meshed together and many public office holders think they can accept any gift under $200 and anything over $200 has to be disclosed. The public office holder doesn't want to disclose it so he won't accept a gift over $200, which I don't think is necessarily the intent or the design of the act.

Last, I don't support the commissioner's recommendation for disclosure of all gifts of $30 or more for a number of reasons. One relates to a point—

[The Chair, NDP, Pierre-Luc Dusseault]

Mr. Dodek, you have 30 seconds left.

[Prof. Adam Dodek]

Thank you.

Very quickly, I don't believe in further bureaucratizing the act and bureaucratizing the work of public office holders so that you have to file disclosures on every ball cap that you get, as I believe Mr. Angus mentioned at a previous committee. Also, I simply don't think that if I were to invite any of you or a minister to come to speak at the University of Ottawa and gave a University of Ottawa hoodie it could be seen by a reasonable member of the public as somehow influencing you.

Possibly I would look at reducing the $200 amount to something more reasonable, to a lower number, not $30. For a point of comparison, in the American legislation—and we know that now the Canadian dollar is at par or higher than the American dollar—it is $100.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you for your answer.

Mr. Boulerice, you will begin the second question period. You have five minutes.

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

Thank you, Mr. Chair.

Indeed, if we had to declare all of the baseball caps we received, I think that our colleague Peter Stoffer would have a few problems in his office.

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

In a paper entitled Conflicts of Interest and Ethics in Government, which could translate into French as Conflit d'intérêts et gouvernement éthique, you wrote this about the British Columbia model:

Under the British Columbia act, any member of the public who has reasonable and probable grounds to believe that a provision of the act has been contravened can request that the commissioner inquire into the matter.

Do you think a similar measure should also be put forward by the federal government?

[Prof. Adam Dodek]

I think it is a good idea to give members of the public the opportunity or the right to file a complaint concerning something an elected official has done, if the commissioner thinks that that complaint meets reasonable criteria. Ultimately, we are talking about the public interest and public trust in the government's sense of ethics.

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

We want to avoid a bureaucratic bottleneck or a plethora of complaints. What measures should be put in place to prevent frivolous or groundless complaints?

[Prof. Adam Dodek]

There has to be a criterion that the complaint must be a reasonable one if the commissioner is to accept a complaint from a citizen.

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

Thank you.

In a paper you published which is entitled Conflicts of Interest and Ethics in Government, you wrote the following:

In effect, the greatest sanction that the commissioners have at their disposal is political condemnation. If the commissioner finds that a member has violated the act, this may result in a political price on the affected member.

We know about this. We have used that in life.

Under a British Columbia act, the commissioner may recommend a $5,000 fine. Moreover—I am now going back to the sanctions—in the United States, people who are found guilty of being in a conflict of interest may be fined or even go to jail.

You said that the current fines of $500 were not very serious since the amount is not very high. You also stated that you do not believe very much in the effectiveness of monetary penalties or fines. However, you suggest that a formal reprimand—that is our translation—be sent to the Prime Minister's Office.

I don't quite understand what you mean by that. To me, a formal reprimand makes me think of a note in my child's schoolbook when he misbehaves in school and the teacher wants to let me know. Is that sufficient? Should there not be much more severe penalties?