Thank you very much. I don't know that it will take 10 minutes, but I have put a few comments together.
Thank you for your invitation to appear before the committee. I have great respect for the institution of Parliament in its various aspects, so I have accepted your invitation. I hope I can be of assistance in responding to your questions.
I was the first commissioner appointed under the Conflict of Interest Act when it came into force in July 2007. I held that position for 10 and a half years. I have now been retired for two and a half years. It doesn't seem that long.
The Office of the Conflict of Interest and Ethics Commissioner administers both the Conflict of Interest Act and the members’ code. These two instruments are quite similar, but they differ in some of their detailed provisions. I believe the focus today will be on the act.
The public office holders covered by the act include ministers and parliamentary secretaries, both of whom are also covered by the members’ code, as well as ministerial staff and advisers and deputy ministers. The act also applies to most Governor in Council appointees, with a few exceptions, such as officers and staff of the Senate, House of Commons and Library of Parliament, and judges.
The main activities of the conflict of interest office include giving advice, providing outreach and education, receiving information from public office holders, some of which is made public, and carrying out examinations in relation to alleged contraventions of the act. As commissioner, I felt that the most important activity of the office was assisting public officer holders in avoiding contraventions through its advisory and educational role.
Those public officer holders who are full time or who are on an annual salary—in the act, these people are referred to as “reporting” public office holders—are required to provide the commissioner with personal information at specified times throughout their tenure. When they are appointed, they must, for example, report their assets, liabilities, previous income and previous employment. They must update this information annually. A summary of this information is reported publicly.
Every new reporting public office holder is assigned a member of the staff of the office as an adviser to meet with and discuss their disclosures and work through any potential conflict of interest issues. This initial adviser normally remains a contact point for advice on any matter of concern or any other information relating to the conflict of interest regime. Together, they may need to work out appropriate measures to ensure compliance with the act. This could include such compliance measures as conflict of interest screens or dealing with the divestment of certain controlled assets, such as publicly traded securities, that could be affected by government decisions.
The other important activity of the office is carrying out investigations of possible contraventions of the act. When an investigation is formally launched, it is called an examination. There's a lot of confusion in the use of those two terms in the media, I have found. An examination may result from a formal complaint made by a member of Parliament or by a senator if he or she identifies the relevant rule or rules in the act and has set out reasonable grounds to believe there has been a contravention, or the commissioner may self-initiate an examination if he or she has reason to believe there has been a contravention of the act. Examinations are carried out in private. A court reporter takes notes of all the proceedings. The commissioner has the power of a court to summon witnesses and to order the production of documents.
I hope this brief overview of the activities of the Conflict of Interest Act while I was a commissioner was of some assistance.
I will make one final observation relating to the provision that describes when a conflict of interest can occur. Section 4 is the “Conflict of interest” section, and it reads as follows: “For the purposes of this Act, a public office holder is in a conflict of interest when he or she exercises an official power, duty or function that provides an opportunity”—I underline “provides an opportunity”—“to further his or her private interests or those of his or her relatives or friends or to improperly further another person’s private interests.”
Now, looking at that definition, a conflict of interest occurs if the exercise of a power, duty or function merely provides an opportunity to further a private interest. It's not necessary that the opportunity be acted upon so as to actually attempt to further a private interest, or that a private interest actually be furthered, nor would any intent to further a private interest be required to meet this definition.
Many, but not all, of the more important compliance rules in the act are built around the concept of conflict of interest, and the description of that concept will be relevant in determining whether any of those substantive rules have been contravened. The meat and potatoes of the actual contravention are contained elsewhere.
I have one final comment. It may be that this committee may wish to consider potential amendments to the Conflict of Interest Act once it has completed its proceedings. The one mandatory review of the act that was required under the act, and there was only one required, took place in 2013-14, but no amendments resulted from that review.
In case it would be of interest, I do refer you to the submission, dated January 30, 2013, that I made to this very standing committee in connection with that review. That submission included 75 suggestions for improvements that I thought might be considered for amendment to the act. Some were editorial but others were more substantial. I summarized a few of my key suggestions in my final annual report as commissioner for 2016-17, which was published in June 2017.
There was at least one other suggestion I have made that was not included in those submissions, and that is the exception for friends that's found in the gift provision, section 11. I do not believe it should be left in section 11 as an absolute exception, because the words of section 11 do the trick in any event, I believe. I think the exception for friends should be removed from that section.
However, having mentioned the 75 suggestions for amendments, I should add that I think the act is generally pretty good. By way of example, while I was commissioner, I received a number of delegations from various countries, all of whom were trying to learn from our act and from how we administered our regime, and were looking for advice for amendments to their legislation or, in fact, new legislation, in some cases.
Thank you for your attention. I hope I can answer your questions.
