Information & Ethics Committee on May 12th, 2016

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

That's an expense item.

I'm just trying to understand. When you say “extend the act to Parliament”, do you mean to financial transactions by members of Parliament? That wouldn't be a big deal. It's already pretty much done.

But is it just that, or does it include notes I send to my staff, does it include notes I sent to my constituents? What would the obligation to document be? Would it be that I must document all meetings I have with my constituents? I'm just curious as to what we're talking about, that's all.

[Vincent Gogolek]

Some of this would relate to lobbying, on which I'll defer to Mr. Conacher. He may have a few things to say about that.

I think it would extend beyond simple financial...because of course there will be discussion in terms of claiming the expense. There would be written exchanges that might relate to it.

Obviously, if we're going to cover Parliament, there will have to be some recognition of parliamentary privilege in it. I think it's more effective to deal with it in the legislation as such.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

That's a good answer. Thank you.

Mr. Conacher.

[Duff Conacher]

A line will have to be drawn. MPs are public employees, but the sense of your boss knowing what you do on the job as an employee is different from the public at large knowing what's going on involving privacy issues and personal information of staff and things like that. The public doesn't have a right to know all of those situations.

The other area in which there will have to be a line is that every MP is also a member of a party and takes part in party activities, right up to the Prime Minister, and what they do for the party is something that I think can be hidden from the public, as long as it's not done with public money.

The biggest concern is MPs' offices being involved in wrongdoing, in terms of an employee position and the use of the public's money, or using the public's money for party activities.

Lines will just have to be drawn. They'll have to be drawn carefully in the legislation, and then the legislation.... No matter what, any law is vague words on paper, and the Information Commissioner will make orders, some of those will be appealed, and eventually after eight or 10 years we'll know exactly what those words mean in terms of where the lines are.

Those are the general areas in which the lines will have to be drawn.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Scarpaleggia.

We'll now go to Mr. Kelly for five minutes.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Thank you.

The current government has released the Prime Minister's document on open and accountable government, and I think we all agree with the aspirations it contains. One that it contained—and this is also repeated in each of the mandate letters that the ministers received—is at all times to avoid the appearance of conflict of interest. From time to time questions have come up about what most people would reasonably think would be the appearance of a potential conflict of interest, whether it be in the case of the chief of staff of the agriculture minister or the relationship between the justice minister and her husband.

When these questions come up, the answer is always something along the lines of saying “we have followed the advice of the Ethics Commissioner, and there's nothing wrong, there is no story here, there is no apparent conflict of interest, no appearance of conflict of interest”.

I would like you, Mr. Conacher, if you could, to expand on the obstacles to actually understanding, or having the information or the correct basis to judge, whether screens are maintained or not. You talked about believing that the screen system is not legal. Could you give us more on how we can take at anyone's word that there is no problem when there seems to be a clear appearance of a conflict?

[Duff Conacher]

First of all, the act does not have that standard. The act allows cabinet ministers, the Prime Minister, senior government officials, all cabinet appointees—

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

It's the mandate letter and the open government statement, though.

[Duff Conacher]

Yes. But I'll just say with the act, they're all allowed to be in a direct financial conflict of interest; they're actually able to make decisions that make themselves money. That's the act. That's why I call it the “almost impossible to be in a conflict of interest” act.

The appearance standard in the code, now called the “Open and Accountable Government” guide or document, dates back to when Brian Mulroney first released it, and even before that. Before it was released, Trudeau had those words in there, “appearance of a conflict of interest”. It's never been enforced by any prime minister since Trudeau Sr., even though that standard has supposedly been there as a requirement for every minister and minister of state, parliamentary secretary, since the late seventies. What does it mean? It means a reasonable person looking at the situation says you're in a conflict of interest.

In terms of potential, that one is more difficult. I'm not actually worried about taking that right out, because if you are in a situation now that creates the appearance of a conflict of interest later, then later, when it becomes relevant, you can't act. You don't need to be looking in the future and trying to predict what's going to happen, and what portfolio you may be given. It will arise at that time and be an appearance of a conflict of interest, and you won't be able to act.

Unfortunately, despite all of the rhetoric, we have another prime minister who's not enforcing that standard yet again. There's more than one situation, not just the justice minister, where we have appearances of conflict of interest, and the people who are supposed to follow that rule are not being required to follow it.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

In your opinion, the defence that whichever minister it may be is following the law, does not match the aspirational directions in the mandate letters or the statement on open and accountable government?

[Duff Conacher]

No, which is why we've called, since 1993, when Democracy Watch started, for those words to be put in the law, and have the Ethics Commissioner, as an independent officer of Parliament, enforcing them. If any prime minister means those words, and wants people to follow them, you put it in the law. You don't put it in a mandate letter and a code, and then not enforce it.

[The Chair, Conservative, Blaine Calkins]

Okay, good.

I'd just remind colleagues that we are actually talking about access to information, and while these questions do tie into information, let's make sure that our questions always go down that road.

Mr. Saini, please.

[Raj Saini, Liberal, Kitchener Centre, ON]

I just have a quick question.

From what I'm gathering from your testimony here, you would like the Information Commissioner to have access to all documents, whether they be at the cabinet level, at the defence level, or at the national security level. The only concern I have for that is that if there are elements within the national security apparatus that might be so sensitive in nature, we have a screen there. I'm not aware of it, but I know there's probably three or four different levels of top secret screening. For a commissioner to have access to those documents, and to read those documents, to me suggests that this person should have a national security clearance screen. A commissioner, who's coming into this position, I would think would have some background in administration, in law, whatever, but now we're putting a further layer, that they would have a national security screen.

Is that pertinent? Is that necessary? How do we deal with that?

[Duff Conacher]

You have the Security Intelligence Review Committee made up of MPs, who have to have that screening level as well. It's no less—

[Raj Saini, Liberal, Kitchener Centre, ON]

But I don't think they have the highest screening. Correct me if I'm wrong, as a new MP, but I don't think the MPs have top security clearance. If you're going to have somebody review those documents, they obviously have to have a higher security clearance.

[Duff Conacher]

I believe they do get that top level screening—Privy Council members as well.

Yes, it's going to reduce the number of people who could hold the position, but not so much that you're not going to have candidates for holding the Information Commissioner position. I think you want to have someone with that type of security screening for lots of other things that they would be reviewing as well, not just national security measures, and it's knowing that this person is going to take the role seriously and look at it.

[Raj Saini, Liberal, Kitchener Centre, ON]

But do you think that one person or one commissioner should have that kind of knowledge and make a decision in a silo on a national security topic?

[Duff Conacher]

They will, because there'll always be an appeal to the courts. I don't think they should be a czar, where their decisions cannot be appealed to the courts.

[Raj Saini, Liberal, Kitchener Centre, ON]

Mr. Gogolek?

[Vincent Gogolek]

It's an interesting question, and as Mr. Conacher noted, there is an appeal to the courts. It may be worth looking at in terms of somebody's having that level of screening as a condition of eligibility for the post. It's an important question, but I don't think it's something that takes it out of the possibility of being done. It's another step, another level of competence that has to be there.

I think it may also have the effect, if the commissioner is cleared to that level, maybe along with other investigators in their office, that it would provide the security and national defence apparatus with confidence in the decisions.

It's an important question, and that may be the way we have to go.

[The Chair, Conservative, Blaine Calkins]

Thank you.

We now go to Mr. Blaikie, please, for up to five minutes.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Thank you very much.

I want to come back to the theme of how we try to harness some of the goodwill and momentum and the positive rhetoric about openness and transparency to ensure that we do actually get meaningful reform within this mandate.

The last government, we know, came in on a white horse of openness and transparency and accountability and then proposed a two-step plan. There were going to be some immediate reforms and then there was going to be a more comprehensive kind of project to follow that would deliver the big goods.

If there are real issues about implementation.... I think we spoke earlier to the fact that the measures in the interim directive don't really speak to the larger issues that would have to be dealt with in the review. To say that we need to wait to see how those go before we can decide what we want to do on those larger issues is, I think, mistaken.

I've done a lot of organizing, whether political organizing or community organizing, and my next question is always, if we've had the general conversation and there's some agreement about what we want to do, how we take it to the next level so that we're getting some action. I think here it's pretty clear that this conversation isn't going to go to the next level until we have proposed legislation.

We can talk about the language the government is choosing to use, whether it's about having a ministerial override clause for the order-making power of the commissioner or whether it's examining what applying access rules appropriately to the PMO and to ministers' offices really means and what it would mean in the context of a larger act.

That's what I think probably needs to happen, if we're going to get any progress. What about the idea of moving more quickly on a substantive act, but not bringing certain clauses into effect, or giving either the President of the Treasury Board or whoever would be the sponsor of that legislation as a minister or the Governor in Council the opportunity to bring those into effect at a later date, if that's required for a kind of rollout of implementation within the civil service, but making sure that those commitments are in law and that it's clear what exactly the government intends to do over the next four to five years?

[Vincent Gogolek]

I think it's unfortunate that we're not having the full conversation right now, but that's the way it is. It's also unfortunate that some of the witnesses this committee heard from previously, who are well-known and have a great deal of experience in the field, did not have the opportunity to see the directives and the actual consultation proposals before they were here to testify. I'm sure they would have had interesting things to say.

There are some things that I think are matters of consensus. Getting rid of a cabinet exclusion is one of them. Having an entire class of documents which, at the say-so of an official, nobody ever gets to look at and nobody ever has access to I don't think is acceptable. I don't think you've heard any witness saying that this is a good idea and that we should keep this and please do not touch it.

It's not part of the proposals. I think it's important that it go in.

Duty to document is another one concerning which I think it's important for this committee to urge the government, if they're going to do a limited number of amendments, that it should be one of them.

[Duff Conacher]

I'll just say you cannot fulfill a promise to be open by default with this act in place.

The government is essentially saying, we're not going to keep that promise until the last year of our mandate with a possible a bill in 2018, and passing it just before the election. So they're saying, we're not going to keep that promise in this mandate. The rhetoric of open by default is not going to change the way that government operates nor the culture.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

The President of the Treasury Board said they're going to mount their own consultation in parallel or after this committee's work. What do you think that consultation could hope to uncover, or who do you think that consultation could engage and speak to, that this committee process is not already engaging or speaking to? Who is left out of this study, understanding that this study isn't over and we have the ability to consult more people?

Do you see value added in the President of the Treasury Board going out on his own with his office and conducting a parallel study? Do you think it's likely that they're going to uncover things that would not be uncovered by this committee study?