Information & Ethics Committee on Feb. 14th, 2023

[The Chair, Conservative, John Brassard]

I'm going to call the meeting to order.

Welcome to meeting number 58 of the House of Commons Standing Committee on Access to Information, Privacy and Ethics.

Today’s meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members may therefore appear in person or remotely using the Zoom application.

Should any technical challenges arise, please advise me immediately. Please note that we may need to suspend for a few minutes, as we need to ensure that all members are able to participate fully.

Pursuant to Standing Order 108(3)(h) and the motion adopted by the committee on Wednesday, November 30, 2022, the committee is resuming its study of the third edition of the Lobbyists' Code of Conduct.

We have one witness joining us via Zoom today, Mr. Conacher.

Have all the tests been completed for Mr. Conacher?

All right, thank you.

I'd like to welcome our witnesses today. As an individual, we have Mr. Scott Thurlow, a lawyer and counsel on legislation. From the Canadian Labour Congress, I'd like to welcome Siobhán Vipond, executive vice-president; and Mike Luff, national representative, political action department; and from Democracy Watch, we have, on Zoom today, Mr. Duff Conacher, the co-founder.

Each of you has five minutes to give your opening statement to the committee.

Mr. Thurlow, you are first. Go ahead, sir, for five minutes.

[W. Scott Thurlow, Lawyer, Counsel on legislation, As an Individual]

Thank you very much, Mr. Chairman.

Good afternoon. My name is Scott Thurlow. I am an Ottawa-based lawyer who provides advice to registrants under the Lobbying Act about their obligations. I am also a registrant myself.

Before I delve into the substance of my presentation, I want to note the irony of having this meeting about a subject I am very passionate about on Valentine's Day. I also want to wish my wife a happy birthday.

[A voice]

Smart move.

[Some hon. members]

Oh, oh!

[W. Scott Thurlow]

Thank you for providing me that excuse.

[The Chair, Conservative, John Brassard]

If you're making the chair look bad, Mr. Thurlow, then you've succeeded. Thank you.

[W. Scott Thurlow]

There are two key points I want this committee to consider, as it reflects on the lobbying commissioner's proposed code of conduct. The first is on the charter implications of what the commissioner has proposed, and the impact on how individual electors participate in the democratic process. The second is whether the potential infringement of charter rights helps the primary goal of the statute: to create a publicly available and transparent lobbying registry.

A ban on lobbying public office holders because of political activity is an ex post facto limitation on the freedom of assembly to join like-minded individuals in a campaign; on the freedom of speech to campaign to share political ideas; and on the democratic right to participate in an election, in the way the Supreme Court of Canada describes, in Figueroa v. R, as the ability to “meaningfully participate” in the democratic process.

I need you, as elected officials, to remember what your volunteers do. They drive people to the polls when they can't get there themselves. They remind people when and where to vote. They make sure electors are registered and help those who aren't registered get on the rolls. They scrutinize the vote count and ensure the democratic will of electors is not usurped. In short, they support, protect and defend our democracy. Why on earth would we want to dissuade a single Canadian from doing that? Even if the proposed code's ban is only for one year, that is still an ex post facto limitation on those rights.

The only judicial instruction about unacceptable political activities is the organization of a fundraiser by a registrant for a person who is the target of their lobbying. A bright-line test is where tens of thousands of dollars may be at issue, and the successful re-election of a candidate could turn on raising that capital. It was our friends at Democracy Watch who filed this suit, so many years ago. There is no evidence to suggest that routine political activities, regardless of their proximity to the candidate, rise to that level or anything proximate to it.

Can a reasonable person, with or without knowledge of the regulatory process, honestly believe the act of canvassing on behalf of a political candidate is so significant as to create a tension between a public office holder's obligation to a volunteer and their duties to their office? You are elected officials. I will allow you to use your own judgment as to what will or will not influence you. I don't think there are many reasonable people who think that door knocking will create this tension.

It is worth noting the proposed code specifically carves out individual contributions within the prescribed limits of the Canada Elections Act. It's $1,650 per year, versus a registrant not being allowed to provide refreshments of $40 twice in the course of a year. One of those two things is prohibited by the code. It's the smaller number.

Is it because Parliament set those limits? Is it because they are reasonable limits in a free and democratic society? When Parliament considers those changes, the tone of the constitutional discussion is different. If Parliament wants to limit the activities of electors, then Parliament will be accountable to them.

In conclusion, I want members of this committee to ask themselves this question: Do you honestly believe the people who gave up their time to support your election should be precluded from communicating with you on public policy issues? From the preamble of the act, I offer you two pillars upon which it is based: A system for the registration of paid lobbyists should not impede free and open access to government, and free and open access to government is an important matter of public interest. Telling an elector they can't communicate with someone flies in the face of those provisions.

I would welcome any questions you have.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Thurlow.

For the benefit of our witnesses, we have a couple of members subbing in today. Mr. Dalton is in for Mr. Gourde. Mr. Zuberi is in, as well as Ms. Vandenbeld. Welcome to the committee.

Next up, we have Ms. Vipond.

You have five minutes to address the committee.

[Siobhán Vipond, Executive Vice-President, Canadian Labour Congress]

Thank you and good afternoon, Chair and committee members.

My name is Siobhán Vipond. I'm executive vice-president of the Canadian Labour Congress, Canada's largest central labour body. The CLC advocates on national issues on behalf of workers from coast to coast to coast.

We support the objectives of the code to ensure that lobbyists adhere to the highest standards of transparency, respect for government institutions, integrity and honesty. We support the commissioner's goal to ensure that the code is clear so that lobbyists understand their obligation, and to foster transparent and ethical lobbying of public office holders. However, we have serious concerns about two rules in the updated code that will undermine my ability to do my job as an elected union official and undermine your ability to do your job as elected public officials.

First, we are concerned about rule 6, with respect to political work. This rule limits the lobbying activities of our members because of political activities they undertake during an election campaign. It is very concerning that the updated code not only subjects our members to a 24-month cooling-off period for campaign work that is strategic, high-profile or important work for a candidate or political party; it also subjects our members to a 12-month cooling-off period for such campaign activity as canvassing, gathering donations, distributing campaign materials and helping with campaign office or event logistics.

These types of campaign activities cannot reasonably be seen to create a sense of obligation by an elected official towards a lobbyist. We firmly believe this rule violates the charter rights of our members to participate in the democratic process. Specifically, it violates our members' freedom of expression under paragraph 2(b) of the charter, and cannot be justified under section 1.

I'm elected to represent my members. An essential part of that is to meet with all of you to discuss my members' priorities, but I also enjoy volunteering on election campaigns for good candidates. This rule forces me to choose between these two things—doing my job representing my members or volunteering on campaigns. That is totally unreasonable and unfair.

The second rule we have serious concerns about is rule 4, with respect to hospitality. The updated code prescribes a $40 limit for hospitality per official at each meeting, lobby day, event or reception, and it prescribes an $80 annual limit per official. This rule will severely limit or effectively end the ability of many unions, associations, charities or organizations to host receptions, lunches or even provide coffee at meetings in cases where there are multiple engagements with the public office holder in a 12-month period.

First, we believe it's unreasonable to suggest that normal hospitality, such as serving coffee, juice, wine or cheese, at any in-person event should create a sense of obligation for a public office holder. Therefore, the threshold is unwarranted.

Second, this threshold will diminish democratic discourse and the duties of public officer holders such as you by curtailing the number of events a public office holder can attend with one organization. If a public office holder attends two events with our organization in January and they reach that $80 annual limit, then they won't be able to attend another event with us for the rest of the year where hospitality is provided. This is a major overreach of the code and will make it much more difficult for you to do your job, as it will limit the interactions you can have with the constituents and stakeholders you represent based on this $80 hospitality threshold.

Third, the rule is completely unworkable for organizations like ours. It's untenable for us to monitor this hospitality threshold for every public office holder. We meet with hundreds of public office holders in a 12-month period. It is totally unworkable for us to monitor and track how much hospitality each public office holder consumes at each event and to ensure that they don't attend other events once they reach that $80 limit.

Plus, it's ridiculous to expect us to enforce this rule. Are we supposed to tell the Minister of Finance that they can't have a coffee or a bagel at the next meeting because they reached their hospitality limit at a previous meeting?

The low-value threshold for hospitality is unwarranted, unworkable and unenforceable. It should be removed from the code. Public office holders are subject to the Conflict of Interest Act with rules for disclosure. Organizations such as ours should be able to offer whatever hospitality public office holders are able to accept.

In conclusion, we believe rules 6 and 4 of the updated code will curtail my ability to do my job and your ability to do your job effectively by limiting how often we can engage with each other on behalf of the people we represent. We urge you to address these concerns in the advice you provide to the commissioner on the updated code.

Once again, thank you for this opportunity. I look forward to your questions.

[The Chair, Conservative, John Brassard]

Thank you, Ms. Vipond.

Thanks to you both for being under time. That will allow a lot more questions to be asked.

Mr. Conacher, you have five minutes, sir, to address the committee. Go ahead, please.

[Duff Conacher, Co-Founder, Democracy Watch]

Thank you to the committee for the opportunity to address you today on this very important topic with regard to some of the key rules amongst other key rules that protect our democracy and government integrity at the federal level.

I'm representing today a coalition of 27 citizen groups with a total membership of 1.5 million supporters, who all oppose the parts of the commissioner's proposed new code that would change the current code rules in ways that would allow for corrupt favour-trading between lobbyists and politicians.

Democracy Watch has already made three submissions to the committee and three submissions to the commissioner. I will be sending a further submission with details about my testimony today.

My first request is that you need to invite the commissioner back before anything goes forward. One of Democracy Watch's submissions has 10 key questions the committee has to ask the commissioner about the implications of these rules, and when she testified on February 3, only one of the 10 questions was asked. Essentially, that's hiding what's really in there.

I'll address the gifts and hospitality rule briefly because lots of people misunderstand it, including people who have testified today. The Ethics Commissioner has already made it clear with a public statement that MPs cannot accept any gift from anyone trying to influence them, whether they're registered as a lobbyist or not, if the gift or hospitality is worth $30 or more annually. That's the limit. It doesn't matter what the lobbyists' code is changed to say; the Ethics Commissioner has said $30 and that's it.

The average donation made over the last five years to political parties by individual Canadians is $75. There's a reason for an $80 annual limit. Canadians, individual voters, can't afford more than that. It doesn't matter, again, whether you change the code; the Ethics Commissioner is going to say you can't accept gifts worth more than $30.

Small gifts have influence. Tests by clinical psychologists worldwide of tens of thousands of people have shown that if you want to influence someone's decisions, you do them a favour or you give them a gift, and even small gifts have influence. If you deny that as an MP you're simply saying you're not human. These tests have been done in every culture worldwide and they all show the same results: the best way to influence someone is to give them a gift or do them a favour, and even a small gift will cause a sense of obligation to return the favour.

The much more important issue is the cooling off periods in rule 6 and the definition of “other political work” in the appendix of the proposed new code.

The current rule is that if you do any significant political work, including any fundraising, you have to sit out for four years. The commissioner is gutting that rule entirely. The commissioner's proposal is that lobbyists, as long as they don't do it more than nearly full time, or without frequent or expensive interaction with a public official or a party official, should be allowed to raise an unlimited amount of money for the politician or the party at the same time as lobbying them. That's just one of many examples of what the “other political work” definition allows.

It's a huge loophole. It's one of the most corrupt things I've seen a so-called democratic good government watchdog do in the past 30 years. I've seen lots of watchdogs let people off for clear wrongdoing.

This will systemically allow for rampant unethical lobbying, U.S.-style trading of favours that's corrupt, and it will corrupt every policy-making process going forward, as lobbyists use fundraising, campaigning and other favours to buy you off and corrupt your policy- and decision-making. It's a 25-year step backwards, back to 1997, before there was a code. It goes against every OECD standard and every other international standard.

The commissioner has also made the very questionable claim that the current four-year prohibition on lobbying after political activities violates the Charter of Rights' freedom of expression, based on one opinion from one law firm, Goldblatt Partners, which the commissioner, in a sole-sourced contract—which is smelly itself—paid tens of thousands of dollars, as far as we can tell.

Several Supreme Court of Canada and other Canadian court rulings have clearly stated that the charter rights can completely, justifiably, be restricted to protect government integrity. As a result, it is clear that the current four-year cooling-off period complies with the charter entirely.

The committee must order the commissioner to disclose this opinion they've received from Goldblatt Partners. For this to go forward based on a secret ruling from a law firm would be untenable.

The second significant problem with the commissioner's proposed new code is that it does not specify what will happen after a lobbyist works in a political party's election campaign headquarters, or campaigns or fundraises for a political party in-between elections. The new code does not say whom a lobbyist would be prohibited from lobbying. Will the prohibition only apply to the political party leader, or everyone in the party?

Also, the third problem is that gutting the code's rules in ways that allow lobbyists to do favours for cabinet ministers, and MPs and senators will also likely gut the ethics rules for ministers, MPs and senators.

How? All of these ethics rules currently have a blanket rule that says that you can't improperly further another person or entity's interests. It would, of course, be improper for cabinet minister, MP or senator to further the interest of a lobbyist who had raised money for them or done other favours for them, but if the Lobbyists' Code is changed to say that it's proper, then it will no longer be improper for the ministers and MPs to do that.

[The Chair, Conservative, John Brassard]

Mr. Conacher, we're past the five minutes. I gave you a little extra time. Please finish quickly.

[Duff Conacher]

I will make one last statement.

If you do not reject the commissioner's unethical proposed new rules or remain silent, you will essentially be supporting corrupt political decision-making.

As I'm testifying this afternoon on Valentine's Day, I will end by appealing to you to show your devotion and commitment to ethical and political decisions by rejecting the commissioner's proposal to allow you to have secret affairs with lobbyists for wealthy private interests, secret affairs that would allow high-powered lobbyists to buy you off through fundraising, campaigning and doing other favours for you, secret affairs that will corrupt your—

[The Chair, Conservative, John Brassard]

Thank you, Mr. Conacher.

We're going to start with our first round of questioning. Perhaps you can pick it up from there, Mr. Conacher.

Mr. Barrett, you have six minutes for questioning.

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

Thanks very much, Chair.

Thanks to the witnesses for appearing today.

Chair, I want to start by talking about some news that comes from the Office of the Conflict of Interest and Ethics Commissioner today. It's that the commissioner has announced his resignation.

I'm fine to use my time for this, Chair.

[The Chair, Conservative, John Brassard]

Okay.

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

I just want to take a moment to remark on the circumstances in which the commissioner has to decided to end his term early. It's due to persistent health challenges. I know these have been a tough couple of years for everyone. These are very trying times, with changes to their work schedule, and he has a commission with lots of staff to run, and he had to adapt to all of that. I would also note that he's been kept quite busy by members and designated public office holders over the last couple of years.

I want to offer a quick quote from the Commissioner. He said:

I firmly believe that educating regulatees and the public about the importance of avoiding conflicts of interest serves to help restore Canadians' trust in public officials and the institutions in which they serve and, ultimately, in our democracy.

I appreciate the commissioner's work over his tenure and, of course, I know that I can confidently speak for all of my colleagues on this committee when we wish him good health and the best of luck in his future pursuits.

Thanks, Chair.

I'll turn now to questions. I'll start with Mr. Conacher.

I want to pick up on the quote from our outgoing commissioner. That's about the confidence that Canadians have in their public institutions.

What do you think the effect of these proposed changes will be on Canadians' confidence in their public institutions?

[Duff Conacher]

Well, you couldn't go much lower. Several surveys in the past several years have shown that only 10% to 20% of Canadians trust politicians. They believe that you are trying to protect elites and yourselves and don't address their concerns.

This move is essentially saying that we're going to legalize bribery, that we're going to let lobbyists buy you off in elections by doing favours for you, campaigning at a very high level up to nearly full-time, raising unlimited amounts of money for you and your party and then lobbying you right afterwards. There is no cooling off period for this. It is not a one-year or two-year period.

This is a huge loophole that is unstated in the draft code. As long as you do it less than nearly full-time and without frequent or extensive interactions with a candidate or an official, you can start lobbying them the next day. If it's in-between elections, you can raise tens of thousands of dollars for a cabinet minister or their party and continue lobbying them. No stop.

It's going to bring in the U.S.-style corrupt politics into Canada. It's the most corrupt thing I've seen a so-called good government watchdog do in 30 years. It's going to corrupt every policy-making process that affects 35 million Canadians. Hopefully Canadians will storm Parliament, because it is a reason to storm Parliament. This is a systemic—

[Matthew Green, NDP, Hamilton Centre, ON]

I have a point of order.

[The Chair, Conservative, John Brassard]

We have a point of order.

I would ask Mr. Conacher to be judicious in his words and use his words carefully. I, for one, as chair, don't appreciate the term “storming Parliament”. I understand the analogy, Mr. Conacher, but please be judicious.

Mr. Green, did I address that?

[Matthew Green, NDP, Hamilton Centre, ON]

You did, sir. Thank you.

[The Chair, Conservative, John Brassard]

Go ahead, Mr. Barrett, I stopped your time.

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

I'll pick up from there, Chair. Thanks very much.

I'll turn to the folks in the room with respect to the effect that campaigning for individuals could have, and then having access to them in your role as a lobbyist, or one's role as a lobbyist.

What do you think is the right way to strike the balance between avoiding the perception that undue or unfair access has been granted versus kindness campaigning for a good candidate, in exchange for access to that candidate once they have been elected, and potentially elevated to the role of a privy councillor?

I'll start with you, Mr. Thurlow.

[W. Scott Thurlow]

I think there are two questions there. The first one is, does this actually happen? We could talk in anecdotes, but I don't think anyone has ever actually said, “This has happened. It's unethical. This is the name of the person. I lay it down like that gauntlet.”

The second is, what I call the hook versus the trawler. If we were talking about the campaign manager, absolutely, there's an elevated role involved, but the proposed code gets everyone. It's the trawler at the bottom. It's very specific.

It's interesting, because the previous code of conduct, the current iteration, does have those more central key roles. It's not necessarily about access to the candidate. It's about who is doing this work in a way that it will really benefit the candidate above and beyond simple public participation.

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

I'm about to run out of time, but to your point, that underscores the importance of being very clear. One thing I've heard from folks who are registered to lobby is that they would appreciate clarity, so there's no question about what they can do during election period and what they can do in their roles as lobbyists.

Would you agree that absolute clarity is essential for this to be effective?