Information & Ethics Committee on Feb. 8th, 2018

[Mario Dion]

I met with Commissioner Bélanger a couple of weeks ago to discuss, with respect to our respective statutes, how we can further co-operate. We're looking at the possibility of drafting some type of a protocol that would highlight the subject matters and the areas where our offices could work in unison. Consider, for instance, education of people governed by the acts on lobbying and conflict of interest. We could provide that education jointly, at the same time, at the same place, because you are one and only one person. You don't really care which commissioner is responsible. You need to understand the total obligations that you have under the two statutes.

We're actively involved in developing a protocol for determining how we can better serve the people who are governed by these two statutes.

[Peter Kent, Conservative, Thornhill, ON]

Would a protocol be adequate or should it be written into law? For example, we have the most recent major investigation by the ethics commissioner, which on the other side involved matters before the lobbying commissioner. Might that investigation have been better conducted by the two jointly?

[Mario Dion]

We have no authority to do that at this point. It's absolutely impossible—and inconceivable—until the statutes so allow. It's completely impossible. We're bound to confidentiality, even with respect to Commissioner Bélanger.

[Peter Kent, Conservative, Thornhill, ON]

I understand. Could you speak to the instance where a member or a minister might have a financial interest and then votes on legislation on issues that may directly or indirectly affect those interests, and where MPs should proactively determine not to vote, or to recuse themselves from committee or cabinet discussions on such issues?

[Mario Dion]

The first thing I would mention is that most bills, probably I would venture to guess, fall within the exemption Ms. Richard was mentioning. A private interest does not include a matter that is of general application. Most bills are, by definition, of general application, or if not that, the effect a public office holder has as one of the broad class of persons.

Most bills do not specifically target a small group of individuals. They usually deal with rules that are applicable to Canadians at large, to Canada as a whole. The issue does not arise in relation to most bills. It's only when there is obviously a direct personalized consequence that the member must recuse himself or herself from voting, and must make a declaration to that effect in the case of ministers.

[Peter Kent, Conservative, Thornhill, ON]

Here's a very quick question.

With what urgency would you recommend the government move to address reform and improvements to the Conflict of Interest Act?

[Mario Dion]

All of us us believe that what we are in charge of is the most important thing—but I know it's not.

The act works. The act could be improved. However, there are several issues that need to be addressed at this point in time. The government will have to determine in its wisdom where this fits. It's not an emergency. It's simply something that should be looked at.

[The Vice-Chair, Liberal, Nathaniel Erskine-Smith]

Thanks very much.

Our last five-minute round goes to Ms. Vandenbeld.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Thank you very much, Commissioner Dion, for being here.

I'm very pleased to hear you saying that you want to make sure that the conflict of interest code and the code of conduct are strengthened, that they are harmonized, and that they provide more clarity.

I think there is a big difference. Some things are clearly conflicts, and I think everybody around this table would know they are conflicts: somebody has a financial interest and is involved in decision-making that enhances personal financial interests. That's obvious.

There are a lot of things that public office holders do in the course of their duties. I'm thinking of a typical Saturday night. It might be to go to a Kiwanis dinner, then go to an ethnic cultural festival, and then maybe go to another reception of some sort for a community group that is hosting something. It might only be $60 or $75 for the tickets. You bring a staffer. You could start looking at $300 or $400 in one evening. On the one hand, it could be perceived as a gift to influence if you accept that. On the other hand, it could lead into the thousands of dollars over the course of a year if you were to pay that out of your pocket. These are not things that I think most people would see as a personal interest.

I'm wondering if there is a way to distinguish in the code between things that are given.... In many of these dinners, cultural groups actually find it insulting if we don't accept the free food. It's the same thing when.... You know I'm on the foreign affairs committee. We have a lot of delegations going abroad where gifts are given. I can understand if it's a very valuable gift, but some are small trinkets or something that's just given because it's a polite, common thing that's done.

Is there a way to distinguish between the real personal private financial interest and the things that we're doing in the course of our duties?

[Mario Dion]

I will need some assistance on this one. We are at the intersection of the code and the act. We're talking mostly about MPs. You're talking as a member of Parliament.

Martine, anything you would you like—

[Martine Richard]

Yes.

We do have a guideline available for assistance under the act. It sets out some of the parameters. As an example, trinkets would not be considered to be an issue. When we are dealing with the question of gifts, we're always looking to see what kind of dealings you may have, either as a public office holder or a member of Parliament, with the person offering the gift. That's when we look at the test. Can it be reasonably seen to have been given to influence?

[Mario Dion]

The guideline Madame Richard is talking about is on our website. It's quite developed. Some people have studied that and have written several pages of guidelines that you may wish to consult.

[Lyne Robinson-Dalpé]

There are exceptions as well for gifts. In the case of a member of Parliament who has functions to attend, there's the exception if it might “reasonably be seen”, because this organization is dealing with you on a regular.... There is an exception for you to accept that gift, even if it can “reasonably be seen to have been given....” So you can contact our office and we will give you advice in that context.

[Mario Dion]

When we do the mandatory training I was talking about, those are the types of questions that we would be equipped to answer on the spot on the part of the MP. I'll have the people who have the experience with me when we do that.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

In this case, and I guess in many cases, that's subjective. It's difficult to contact your office when one is going to four or five of these kinds of events in a week.

This goes to my next question, which is about the spirit. I think everybody agrees that the letter of the code or the spirit of the code...it's the spirit that needs to be respected, but again, you talked about clarity and predictability. I think it's very important for public office holders not to be in a position where they accidentally end up in violation on something that, if you look at the spirit, may actually go the other way. The spirit might actually allow it, but the letter doesn't.

When you talk about the clarity and predictability, when you say you want to make recommendations on the spirit, and then, of course, if there is a complaint made, it would go back to the letter, where is that boundary? Because as much as I think that's very important, I could see that adding less predictability, less clarity, and more subjectivity in terms of what a public office holder can or cannot do.

[Mario Dion]

The one thing I haven't said yet and that I would like to say is that total clarity will never be achieved. That's clear. We're talking about improving clarity. Somebody cannot be blamed for having breached the spirit when something was done that was clearly in keeping with the letter of the law. That's how it works, but sometimes it serves to understand the spirit in order to determine whether you can or cannot do something.

It's a very fine art each and every time. That's why it's important that some people look at possible options, people who have experience in the context of what it is to be an MP or minister, the actual context, what's achievable, and what's not achievable, making it as clear as possible, but it's not easy at all.

[The Vice-Chair, Liberal, Nathaniel Erskine-Smith]

Thank you very much.

We have Ms. Mathyssen for three minutes.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Thank you very much, Mr. Chair.

I was thinking in terms of the appearance of conflict versus actual conflict. It gets very dicey here in terms of the rules, which say you cannot breach the act in terms of actions or the appearance of conflict of interest. Where do you stand on that? As in the case that Ms. Vandenbeld was talking about, how do you sift your way through that?

[Mario Dion]

Correct me, Madam Richard, if I'm wrong, but the act does not deal with appearance. The act deals with actual conflict.

[Martine Richard]

That's right, except for the gift provision: “reasonably be seen to have been given to influence”. That is the only provision that really deals with appearance.

[Mario Dion]

Appearances do exist, appearances can be bad, and appearances have consequences, but it's not punishment under the act, okay?

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Yes.

[Mario Dion]

It's something else. It belongs to the political side of things as opposed to the observation of the Conflict of Interest Act—

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Yes, and sometimes—

[Mario Dion]

—except insofar as gifts being given is concerned.