Information & Ethics Committee on Oct. 25th, 2017

[The Chair, Conservative, Bob Zimmer]

I call the meeting to order. Good afternoon, everybody.

This is meeting 73 of the Standing Committee on Access to Information, Privacy and Ethics. Pursuant to the order of reference of Wednesday, September 27, 2017, we are studying Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other acts.

I've been told that MP Cullen would like to make a motion at this time.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you, Chair.

This committee has a mandate, and I'm sure everyone's familiar with it. It's under subparagraph 108(3)(h)(vi). I'm sure we could all quote it chapter and verse, but let me quote it just to remind my colleagues of the mandate of the standing committee:

in cooperation with other committees, the review of and report on any federal legislation, regulation or Standing Order which impacts upon the access to information or privacy of Canadians or the ethical standards of public office holders;

That's what this committee is charged with, so this is the appropriate place to do that. As some will have noted, I asked the Prime Minister for his thoughts on this in question period, but perhaps question period isn't always the most deliberative place that we have in the House or in Parliament. This is, of course. It's a committee.

I move the following motion, and I'll be curious for colleagues' comments on it:

That, pursuant to Standing Order 108(3)(h)(vi), the Committee undertake a study of the Conflict of Interest Act and how it relates to public office holders; that the Conflict of Interest and Ethics Commissioner be invited to discuss her 2013 recommendations—

—that have been so often quoted—

—provided in the context of the five-year review of the Act; that the Finance Minister be invited to explain decisions he has made in accordance with the Conflict of Interest Act; and that this study begin as soon as possible.

That is the motion as moved. I want to be very cautious, and respectful of our witnesses today. I'm not expecting an extended debate on this, but I wanted to put it forward, hear comments from colleagues, and move this motion.

[The Chair, Conservative, Bob Zimmer]

I'm willing to hear all sides.

Mr. Kent is first.

[Peter Kent, Conservative, Thornhill, ON]

Thank you.

I certainly support the sentiment of Mr. Cullen's motion, but I'm also aware that while we operate under Standing Order 108(3), there was a proviso written into the mandate at the time of its creation by PROC, the procedure and House affairs committee, regarding the Conflict of Interest and Ethics Commissioner. If the conflict of interest relates to a member of the House of Commons, a specific member, as I think in this case it obviously does, it is to be studied by the House of Commons Standing Committee on Procedure and House Affairs.

I think we can certainly call the commissioner in terms of a general discussion, and we could certainly take a study of the act. However, I'm afraid that to get to some of the statements of the Prime Minister and finance minister quoting the commissioner—and we would certainly like to see if she agrees with the way they've characterized her advice, recommendations, and information—I think it would have to go before PROC.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

We did look at that aspect, Peter, just in terms of where the proper place for this was. The advice that we were given is that, while it could exist within PROC, as is sometimes legislated, Standing Order 108(3) allows us at the end, with “the ethical standards of public office holders” the purview to review.

What we're trying to do is, as my grandmother used to say, “Never waste a good crisis.” If something goes wrong, the worst thing you can do is not learn any lessons from what has happened. We see this use of the Ethics Commissioner.... She is in an awkward space sometimes, Chair, as you know, because the conversations that we as MPs have with her are by default private, in order to say things. I've had conversations with her privately, and I want to have them publicly. I think that would be helpful to everybody.

If we are not to learn from these things, the concern is that the message sent is that the act has contained within it provisions, for example, that if I own a company but I number the company, then it changes my ethical obligations on reporting. It changes my obligations with respect to conflict of interest, which is the code, a different thing. Yet this committee is charged under 108(3) to look at moments like this, and we have a moment like this right now, “the ethical standards of public officer holders”.

I hear the concern about whether it's best done at PROC or best here. We read 108(3) pretty clearly. It says, “the ethical standards of public office holders”, so here is where we can review. The Ethics Commissioner certainly would be the first witness we would want to call.

[The Chair, Conservative, Bob Zimmer]

Mr. Erskine-Smith.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I don't think anyone, on this side or otherwise, would take issue with having the Ethics Commissioner at some point before us. I am cognizant of the time of the witnesses today in particular.

Mr. Cullen, you mentioned that in the House this issue becomes politicized. If we're getting into the issue of a rule, that's one thing, but if we're getting into further politicizing the finance minister's personal situation, I think in, at times, an incredibly unfair way, I would worry that this becomes a forum for doing that in addition to the House in question period.

I think it's appropriate to call the Ethics Commissioner. I don't think it's necessarily appropriate now, given that we have to continue the debate, so I would move that we put this to a vote.

[The Chair, Conservative, Bob Zimmer]

Mr. Erskine-Smith, it's not up to me to decide to go to the vote if debate still exists. The debate is still ongoing. We'll let it continue. It will go to a vote when debate collapses.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

That's fair enough.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Chair, as I said, I was conscious of having very good and important witnesses in front of us on Bill C-58. This is the mechanism that we have. As I said at the beginning, I don't wish to belabour this.

The frustration and question for many Canadians whom we hear from is what exactly the rules are and how the interpretation of the rules manifests in real life for us as public office holders.

We have a case in front of us that I think helps illustrate some of the problems with the act. We put a motion before Parliament. I'm not sure whether any colleagues here spoke to it, but when colleagues of mine spoke to it, all we got from the benches opposite was a speech about everything except ethics, everything except the ethical guidelines and the code.

We tried in Parliament in debate. We tried in question period to ask simple and straightforward questions about disclosure, about ownership, about conflicts of interest. I think it's a fair assessment to say that we haven't received answers. I watched the finance minister last night in front of the media on CBC. He was asked very straightforward questions—nothing scatological, nothing like “Have you sold your shares”, for example. Again, there was no answer.

If committees aren't the place to charge that, if Parliament is not the place to charge it, if speaking to the media is not the place to discharge this, then where is? At some point the government can't say in their mandate letters that ministers must “bear the fullest public scrutiny”—I think that is the call, the commitment for each of the ministers of the crown. The opposite has been true: we don't have full public disclosure; we can't know what ethical rules have been broken. We also can't know that simply saying “the Ethics Commissioner gave me this advice”, when we don't actually hear from the Ethics Commissioner as to what the process is when an MP goes before her and says, “This is my financial arrangement”....

I have pertinent questions, and I think all members likely have pertinent questions for her asking how she manages conflicts of interest. How does she manage, for example, when the conflict of interest shield is your own chief of staff, whom you hired? Is there not a dynamic and a tension there, that a person whom you hired is now responsible for telling you “no, no, and no” and not explaining it?

These things, for which we think there are legitimate places within the ethics act to guide us, and in the members' code, I would argue, which can be exploited simply by doing something quite common—well, not common for most middle-class people, but simply common in business, to set up a numbered account.... Then suddenly our ethics code no longer speaks to it. Well, that's no good.

I think that if the finance minister wants, and I think he is sincere in this, to focus on his job, which is to run and administer and regulate the financial sector—in which he has holdings, by the way, but regardless—the best way to do so, in my experience, is to clear the air, to come forward, to tell us everything. If he says there's no conflict of interest, then there should be no problem in clearing the air, in being transparent, which is also in his mandate letter.

We have found the opposite to be true, in debates in the House, in question period, and in his dealings with the media. We turn then to committee, because committee is a deliberative place, where we put people here in front of us and ask them questions.

I hear Nathaniel's concern about politicization, but to vote against this, to say that we're not interested in hearing from the Ethics Commissioner, that we're not interested in hearing from the finance minister, is in fact an act of politics. It's to say these things aren't important, when clearly they are for everybody watching.

If there is some amendment they seek to move on this, if there's some other way to crack this nut, we're very interested in the conversation. To simply reject efforts to fix the loopholes in the act, however.... It's hard to draw any other conclusion than that the government is not sincerely interested in getting to the bottom of this.

[The Chair, Conservative, Bob Zimmer]

Mr. Kent, go ahead.

[Peter Kent, Conservative, Thornhill, ON]

Well, notwithstanding the proviso that's on the books, I would certainly support a call to the commissioner and to begin a study on the flaws that she identified in 2013, which are obviously still there—many of them hadn't been exploited until now—and at least to begin the conversation before this committee, even though in the end the specific questions about specific individuals may end up before PROC.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

We can stand this motion if there is any interest in that conversation, if calling the finance minister before the committee is the concern, in terms of what Nathaniel talked about, politicization. If that is not of appetite—I hear that from Nathaniel; I don't know if his colleagues share it, but I'm going to take a wild guess that it's likely—then calling—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

They don't always agree with me.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Is that right? I heard the opposite.

If simply beginning that study on what concerns have been raised about the code itself is of interest to the committee, then we'll certainly stand this motion for today and not require a vote on it. We can have a dialogue off channel about how we might actually get at this, if that's amenable to my colleagues.

[The Chair, Conservative, Bob Zimmer]

Are you withdrawing?

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Yes, I'll withdraw, because I am concerned about time, and if there is a willingness and openness to dialogue, then we'll certainly do that and find another way to get at this. We thought this was the clearest way.

Apologies to the witnesses.

[The Chair, Conservative, Bob Zimmer]

The clerk has just informed me that we have two options: either adjourn debate on it, which would just require 50% plus one, or withdraw the motion, for which you would need unanimous consent.

What would you prefer, Mr. Cullen?

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I would withdraw, with the provision and the understanding that there is agreement among us to talk about a way to get the Ethics Commissioner—

[The Chair, Conservative, Bob Zimmer]

So, is it to suspend debate?

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Yes. The only concern I have with withdrawal.... Does that eliminate the motion from future consideration?

[The Clerk of the Committee, Mr. Hugues La Rue]

You would have to move it again.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

To move it again is not a concern. We would just give notice.

[The Chair, Conservative, Bob Zimmer]

Are you willing to withdraw?

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Yes, that's okay.