Evidence of meeting #90 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was gift.
A recording is available from Parliament.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
I have some short questions. First, I'd like a clarification. You mentioned that your decision is not subject to appeal, but paragraph 28(1)(b.1) of the Federal Courts Act does allow for appeal to the Federal Court.
Senior General Counsel, Office of the Conflict of Interest and Ethics Commissioner
Yes, it's a privative clause—
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
It's not really an appeal; it's a judicial review, which is very different. The commissioner says whether there was a breach or not.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
It's an administrative appeal, so it is an appeal of your decision through administrative law.
Senior General Counsel, Office of the Conflict of Interest and Ethics Commissioner
There is a privative clause under the Conflict of Interest Act, which is found in section 66. The remedy is a judicial review at the Federal Court of Appeal, because we're a section 28 tribunal. However, the grounds are very limited. There's no judicial review on a question of law, fact, or mixed law and fact. For example, If there are procedural issues, that could be a ground for review.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
Of course, privative clauses are not completely determinative, so the courts may well decide otherwise.
Senior General Counsel, Office of the Conflict of Interest and Ethics Commissioner
Yes.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
However, there's also a 2009 decision involving Commissioner Dawson where the court reaffirmed the non-reviewability of the conclusions made by the commissioner.
Senior General Counsel, Office of the Conflict of Interest and Ethics Commissioner
That's right.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
I have a follow-up question. In the media you've said that you're not going to be bound by the precedents set by Ms. Dawson's rulings and her interpretation of the rules. However, you've also asked us to interpret section 17, or clarify the interpretation of section 17, in relation to controlled assets. When I read that, it's clear that you can't hold controlled assets. It doesn't say “directly” or “indirectly”, and any reasonable interpretation, as I look at it, would refer to both. Mary Dawson had a different interpretation that doesn't strike me as particularly reasonable, and if you're not bound by her precedent, I wonder why you can't simply interpret it differently.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Next time the issue arises, we'll have a look at it.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
In respect of guiding and giving advice to holders of public office, based on the spirit of the law, wouldn't it be good to clarify that as soon as possible?
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
I can certainly have a look at the grounds on which Madam Dawson reached her conclusion. The key words are “to hold”. Are you holding controlled assets when those—?
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
One can hold things indirectly.
My next question is about additional orders. While I think Mr. Kent's question about repaying things at the taxpayers' expense is a bit bizarre, I do think repayment of the reasonable value of an improper gift that one receives is prudent and reasonable under the act. I asked Ms. Dawson and she said she didn't think the act covered that. Do you think this should be a new sanction or order that the commissioner ought to have?
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
We would need some guidance as to how you evaluate a gift, because certain gifts are hard to evaluate. Of course it would be—
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
Reasonable commercial value....?
Turning to fundraising rules, you said they should be strengthened under section 16. You didn't give many examples, so perhaps you could provide this committee with some examples in writing of how you would want section 16 strengthened.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Okay.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
You mentioned sanctions on monetary amounts larger than $500. Could you follow up in writing with whether you would differentiate between good-faith mistakes and intentional or willful blindness, and whether there would be a difference in discretion pursuant to those sanctions? I tend to agree with Mr. Baylis that this has to be de minimis. It would not make sense to register and spend staff time on gifts of $30 or $40 that aren't reasonably seen to influence us. Let's not waste our time. I would ask you to revisit that recommendation.
Lastly, the Conflict of Interest Act is all about conflicts of interest. However, the ethical question that we're dealing with in today's world, for members of Parliament and public office holders, is really about harassment. There is a House of Commons policy on preventing and addressing harassment, but there's a bizarre procedure involving an independent investigator, and there's a whole separate track to this. Actually, the policy says that ideally you should go through the whip's office, which strikes me as incredibly bizarre when we're asking people to come forward.
You don't have to answer this fully now, but do you think you would have the resources, if the act were to be amended, to address this issue under the purview of your office, where you have a common investigation process in which you're giving training and advice? Do you think it's reasonable for you to have that purview, or do you think it ought to be separate?
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
I don't have to answer immediately, but I would like to answer immediately that I don't currently have the resources.
February 8th, 2018 / 10:05 a.m.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Moreover, the nature of what's involved is very different from what this office was created to deal with. It's difficult to imagine how we could pursue both at the same time.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
Fair enough, thanks very much. With that we will break and come back in camera to discuss with you.
[Proceedings continue in camera]