Evidence of meeting #12 for Access to Information, Privacy and Ethics in the 43rd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was charity.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Ian Shugart  Clerk of the Privy Council and Secretary to the Cabinet, Privy Council Office
Gina Wilson  Deputy Minister, Diversity and Inclusion and Youth, Department of Canadian Heritage
Benoît Robidoux  Associate Deputy Minister, Department of Employment and Social Development
Mary Dawson  As an Individual

August 11th, 2020 / 4:40 p.m.

Mary Dawson As an Individual

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.

4:50 p.m.

Conservative

The Chair Conservative Rachael Harder

Thank you very much, Ms. Dawson.

With that, we'll proceed to our first round of questions. It is a six-minute round.

Mr. Barrett, the floor is yours.

4:50 p.m.

Conservative

Michael Barrett Conservative Leeds—Grenville—Thousand Islands and Rideau Lakes, ON

Thanks, Madam Chair.

Thank you, Madame Dawson, for appearing yesterday and again today. I appreciate that.

4:50 p.m.

As an Individual

Mary Dawson

I was invisible yesterday.

4:50 p.m.

Conservative

Michael Barrett Conservative Leeds—Grenville—Thousand Islands and Rideau Lakes, ON

That's right. We're happy that you're with us today.

I want to pick up on two of your comments. One is with respect to improvements needed under the act. Do you think there should be tougher penalties for repeat contraventions of the act, and if so, what?

4:50 p.m.

As an Individual

Mary Dawson

I'm not an advocate of extra penalties.

As you undoubtedly know, there are some penalties in the act, but they're small ones and they're only directed at failures to meet.... They're called administrative, monetary penalties, and they're directed towards failures to meet deadlines to get mandatory information in, and those have been used frequently.

Aside from that, one has to bear in mind that this is not a criminal piece of legislation; it's an ethical act. It's interesting that the word “ethics“ is only used in its title; it's not used anywhere in other parts of the act—not its title, but the title of the commissioner, actually. That's the only place that word is used. In any event, it's a civil level of proof that goes on under this act, reasonable probability, not the criminal level, “beyond a reasonable doubt”. There are also lots of provisions in the criminal sphere, such as bribery, fraud or whatever, that would apply potentially in a similar situation. In fact, there's a responsibility to, if one appeals.... If there has actually been a criminal offence, as commissioner one is required to pass it on to the principal people who look after criminal matters, and one must discontinue the investigation, if one has begun.

Basically, that's my justification for thinking I'm not too concerned about penalties.

4:50 p.m.

Conservative

Michael Barrett Conservative Leeds—Grenville—Thousand Islands and Rideau Lakes, ON

Okay.

What's your view of the word “friend” under the act?

4:50 p.m.

As an Individual

Mary Dawson

Well, it's not defined, and it's not an easy.... One of my earlier decisions related to a person who would have been found to have contravened if he had been found to be a friend of a particular person, and I found that he was just a name-dropper, basically, and that the guy wasn't a friend, so he was exonerated.

By the same token, as you may have seen in the Trudeau I report, I had to deal with that issue. I think it's not an easily defined term, and it's a term that can create some embarrassment if somebody says he's your friend and then you determine that he's not a friend, so I always say, “for the purposes of the act”.

I did provide a definition in that initial case. I don't have it in front of me, but it's somebody with a close relationship, perhaps having met in a person's home for dinner, someone who is more than just a passing acquaintance. As I said, there is a very good definition of that, and I should have thought to pull it out, but I don't have it in front of me.

4:50 p.m.

Conservative

Michael Barrett Conservative Leeds—Grenville—Thousand Islands and Rideau Lakes, ON

No, that's quite all right. Thank you. I am familiar with your finding in the Trudeau I report with respect to the interplay of the Prime Minister's relationship and that of the Aga Khan, where he was ultimately found to have contravened the act for the first of two times.

I understand in section 9 of the act, on furthering private interests, for example, there is a difference in how friends and relative strangers are treated. Is that correct?

4:50 p.m.

As an Individual

Mary Dawson

I'm sorry, a difference between—

4:50 p.m.

Conservative

Michael Barrett Conservative Leeds—Grenville—Thousand Islands and Rideau Lakes, ON

In section 9 of the act, on furthering private interests.... I'm just looking to highlight the difference between how friends and strangers—

4:50 p.m.

As an Individual

Mary Dawson

Yes. Sorry, so your question is what?

4:50 p.m.

Conservative

Michael Barrett Conservative Leeds—Grenville—Thousand Islands and Rideau Lakes, ON

It is the difference between friends and strangers—

4:55 p.m.

As an Individual

Mary Dawson

Yes, sections 9 and 6 both have a.... Well, friends are the only ones mentioned there: “relatives or friends or to improperly further another person's....” Is it the “improperly” you're wondering about, or...? That's the issue; you have to determine whether somebody is what we would consider a friend. As I say, many other commissioners across the country have used the definition that was in that decision, but I'm not sure what you're looking for me to say.

4:55 p.m.

Conservative

Michael Barrett Conservative Leeds—Grenville—Thousand Islands and Rideau Lakes, ON

I have just about one minute left, so I'd say that, in the case you referenced in the Trudeau I report, invoking friendship was the defence to justify Mr. Trudeau's family receiving a luxury vacation as a gift, because gifts from friends are treated more permissively under the act. That's what I'm looking for your confirmation of.

4:55 p.m.

As an Individual

Mary Dawson

Yes, and I was making reference to it basically in that context, to section 11. Section 11, the gift provision, is the one that was involved in the Trudeau I case. I went through quite a bit of investigation to determine just how frequently they had seen each other over the 30-year period and that sort of thing, but it's a matter of determining whether they're a true friend.

4:55 p.m.

Conservative

Michael Barrett Conservative Leeds—Grenville—Thousand Islands and Rideau Lakes, ON

Thank you.

4:55 p.m.

Conservative

The Chair Conservative Rachael Harder

Thank you.

The floor is Madame Shanahan's for six minutes.

4:55 p.m.

Liberal

Brenda Shanahan Liberal Châteauguay—Lacolle, QC

Thank you, Chair.

Thank you, Ms. Dawson, for appearing with us today, for bearing with us and for your past service. That's very helpful to this committee in the considerations we have before us.

4:55 p.m.

As an Individual

Mary Dawson

I have somebody knocking at my door. I guess I'll just leave them. Anyway, there is nothing I can do. They'll either come in or go away.

4:55 p.m.

Liberal

Brenda Shanahan Liberal Châteauguay—Lacolle, QC

Ms. Dawson, I just want to take a moment to talk about process. We have you here today. We're studying this matter that's before us, but at the same time, the current Ethics Commissioner has just begun looking into this same matter.

What is your take on these two processes taking place at the same time? Is this helpful or unhelpful to the current Ethics Commissioner to see the committee here doing this kind of investigation?

4:55 p.m.

As an Individual

Mary Dawson

I don't think it's unhelpful, in the sense that the current commissioner has the job of trying to get underneath the facts of this case and figure out what's going on, so anything new unearthed, I suppose, will be helpful. It's early in the game to figure out where the decisions are going to come down, but it's a matter of digging out the information.

4:55 p.m.

Liberal

Brenda Shanahan Liberal Châteauguay—Lacolle, QC

Thank you.

We had with us yesterday Mr. Conacher. I don't think it will be a surprise to you that he's no fan of yours, Ms. Dawson. In 2013, in response to your refusal to investigate former prime minister Stephen Harper, he referred to you.... This is not the kind of language that I use, but this is what he said. He said that you were the “lapdog” federal Ethics Commissioner. He also made a comment that you had let dozens of Conservative MPs “off the hook” for clear ethics violations.

How do you react to those statements? With that kind of public discourse, how is that helpful to the work of...? I'd like to get your reaction on this kind of public discourse.

4:55 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Point of order, Madam Chair. Madame Shanahan will go on record as having put these baseless accusations against Ms. Dawson.

4:55 p.m.

Liberal

Brenda Shanahan Liberal Châteauguay—Lacolle, QC

I'm sorry? May I respond?