Information & Ethics Committee on June 20th, 2023

[The Chair, Conservative, John Brassard]

Good afternoon. I call this meeting to order.

Welcome to meeting No. 78 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, and therefore, members can attend in person in the room and remotely using the Zoom application.

I'd like to remind everyone, as I did at the last meeting, that although the room is equipped with a powerful audio system, feedback events can occur. These can be extremely harmful to the interpreters and cause serious injuries. The most common cause of sound feedback is an earpiece worn too close to a microphone. Therefore, we ask that all participants exercise a high degree of caution when handling the earpieces, especially when your microphone or your neighbour's microphone is turned on.

In order to prevent incidents and safeguard the hearing health of our interpreters, I invite participants to ensure that they speak into the microphone into which their headset is plugged and avoid manipulating the earbuds by placing them on the table, away from the microphone, when they are not in use.

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

Pursuant to Standing Order 108(3)(h) and the motion adopted by the committee on Thursday, April 25, 2023, the committee is studying the appointment of the Hon. Navdeep Bains as chief corporate affairs officer at Rogers Communications.

I would now like to welcome our witnesses for today.

From the Office of the Commissioner of Lobbying, we have Nancy Bélanger, Commissioner of Lobbying, with us again, and from the Office of the Conflict of Interest and Ethics Commissioner, we have Lyne Robinson-Dalpé, director, advisory and compliance.

Ms. Bélanger, the floor is yours for five minutes.

[Nancy Bélanger, Commissioner of Lobbying, Office of the Commissioner of Lobbying]

Good afternoon Mr. Chair and members of the Committee.

I am appearing before you today to explain the lobbying restrictions under the Lobbying Act that apply to designated public office holders when they leave federal office.

Under the act and regulations, designated positions include those held by ministers and their staff and by many senior executives within government, such as deputy ministers, chief executive officers, associate or assistant deputy ministers and other executives of comparable rank. Members of the House of Commons and the Senate are also designated public office holders.

Please let me say at the outset that I cannot discuss particulars of any matter as such information would be personal to the individual and I must respect confidentiality.

The Lobbying Act bans any former designated public office holder from lobbying as a consultant or as an employee of an organization for five years after leaving federal office.

However, if a former designated public office holder is employed by a corporation, the act only bans the individual from lobbying when it would constitute a significant part of the individual's work on behalf of the corporation. In practice, this means that such an individual can lobby as an in-house lobbyist if the lobbying is less than approximately 20% of the individual's work-related duties for the corporation.

There is no clear, rational explanation as to why the five-year restriction applies differently depending on whether the former designated public office holder is employed by an organization as opposed to a corporation. In February 2021, I raised this discrepancy in my preliminary recommendations for improving the Lobbying Act. I believe this should be studied and addressed by amending the act.

As Commissioner of Lobbying, I do not have the authority to approve or give clearance with respect to where a former designated public office holder decides to work.

My role is to ensure that they understand their obligations under the Lobbying Act. Failure to comply with the five-year restriction on lobbying is an offence under the act, and it is therefore important that it be clearly understood.

My role is also to investigate should there be concerns of non-compliance with this restriction.

Mr. Chair and committee members, I thank you for your attention, and I will welcome any questions.

[The Chair, Conservative, John Brassard]

Thank you, Madam Bélanger.

Welcome to the committee, Ms. Robinson-Dalpé. The floor is yours for five minutes.

[Lyne Robinson-Dalpé, Director, Advisory and Compliance, Office of the Conflict of Interest and Ethics Commissioner]

Thank you.

Mr. Chair, honourable members of the committee, today, I will address an important aspect of the Conflict of Interest Act: the post-employment rules that are administered by our office and found in part 3 of the act. These rules are in place to ensure that individuals who leave public office do not misuse their insider knowledge or influence for personal gain. All post-employment rules apply to reporting public office holders while only certain rules apply to public office holders.

So, what exactly do these rules entail? Some are time bound and some apply indefinitely.

Firstly, after leaving public office, individuals are prohibited from accepting board positions, offers of employment or contracts for a specific period. This cooling-off period varies depending on the position held. It applies to all reporting public office holders and is for the duration of one year for most, except in the case of ministers where its duration is for two years.

The purpose of this rule is to prevent former reporting public office holders from using their connections to secure positions immediately after leaving their office where they had both direct and significant official dealings in the year prior to their departure. Direct and significant dealings are determined case by case. Most registered communications in the lobbying registry are significant dealings; however, each of them must be reviewed based on fact to ensure appropriate advice is provided.

Secondly, during this same cooling-off period, those same individuals are restricted from making representations, even if they are unpaid, to departments and organizations with which they had direct and significant official dealings in their last year of office. These rules are found in subsections 35(1) and 35(2) of the Conflict of Interest Act.

There's a third restriction in subsection 35(3) specific to former ministers that prohibits them, during the same two year cooling-off period, from making representations to a current minister who was also a minister at the same time as they were.

Further, during the cooling-off period, communications and meetings arranged with any public office holder, as defined under the Lobbying Act, need to be captured on a form for filing activities under section 37 of the Conflict of Interest Act. It is available on our website, regardless of whether the meeting actually took place, and whether the former reporting public office holder attended the meeting. These are the rules that are time-bound and apply only to reporting public office holders.

Additional post-employment rules apply to all former public office holders, regardless of the type of position the person held, and apply indefinitely. These matters are related to the specific areas of their previous responsibilities and are found in sections 33 and 34 in part 3 of the act.

No individuals who have ever been subject to the Conflict of Interest Act can take improper advantage of their previous office for personal benefit or influence, in a manner that raises questions about integrity and conflict of interest, nor can individuals switch sides on any matter for which they acted or provided advice to the Crown by then aligning with another person or organization for the opposing side.

Finally, they cannot provide advice based upon information obtained while they were a public office holder that is not in the public domain. For these indefinite prohibitions, there are no exemptions, waivers or reductions.

The post-employment rules are to be taken seriously to protect the public interest and hold individuals accountable for their actions. Violations of the rules can lead to an examination and a subsequent report, or can even lead to the issuance of an order demanding any current public office holder to not have official dealings with the former public office holder.

In the matter that has brought us together today, I can affirm that Mr. Bains has permitted the office to confirm publicly that he sought and obtained advice from the office on the post-employment rules.

He is past the two year cooling-off period and is at liberty to accept employment, while keeping in mind that sections 33 and 34 of the act apply indeterminately.

In conclusion, the Conflict of Interest Act includes important post-employment rules to prevent former public office holders from using their influence or insider knowledge for personal gain. These rules establish cooling-off periods and restrict certain activities that apply for life. By doing so, we safeguard the integrity of our public institutions and maintain the trust of the Canadian people

Thank you.

[The Chair, Conservative, John Brassard]

Thank you, Madam Robinson-Dalpé.

I understand that you're before committee. Typically we would have the ethics commissioner here. We really appreciate your being here today in the absence of an ethics commissioner.

Mr. Barrett, we're going to you for six minutes.

Go ahead, please.

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

Thanks, Chair.

Thank you to our witnesses for joining us today.

I have the same set of questions for both of you. I'll start with Ms. Robinson-Dalpé.

Ms. Robinson-Dalpé, on what date did you provide that advice to Mr. Bains?

[Lyne Robinson-Dalpé]

I don't have the exact date—my apologies. It was early April.

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

Who was the ethics commissioner at that time?

[Lyne Robinson-Dalpé]

At that time, we did have an interim commissioner, Ms. Richard.

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

Okay.

Was there any concern raised about the connection between Mr. Bains and the interim commissioner, in that there was a familial relationship between the interim commissioner and one of Mr. Bains'—

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

I have a point of order, Mr. Chair.

[The Chair, Conservative, John Brassard]

Based on what standing order?

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

It's on relevance. I don't think that....

[The Chair, Conservative, John Brassard]

I've dealt with this before. Members have a wide range of questions they can ask. Mr. Barrett is asking those questions. It's his time.

Please continue, Mr. Barrett.

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

I think you had the question, Madam.

[Lyne Robinson-Dalpé]

When the public office holder contacted our office, the adviser was the one who received the information.

The normal course of action is that, when a public office holder has a question with regard to their obligations under the act, they contact their adviser. When the adviser receives the information and then makes an assessment of that information, at that point in time, they look at precedents and they make a recommendation, or they contact their manager or me, the director.

If there is any particular matter that should be raised with the commissioner at that point in time, it is raised with the commissioner. In this case, I did raise it with the management team to inform them of the appointment. However, there was no decision required, because Mr. Bains' two-year cooling-off period had lapsed.

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

Had he taken the position at the time that he sought the advice of your office? Had he already joined the company?

[Lyne Robinson-Dalpé]

Unfortunately, because of confidentiality issues, I did not seek permission from Mr. Bains to confirm when the advice was received.

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

That's fair enough. I'll say that I appreciate that you did get some latitude on what you were able to come and say.

Can you tell us how many investigations have been initiated by your office since April?

[Lyne Robinson-Dalpé]

I can say that there are currently no active investigations ongoing.

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

Okay.

With respect to waivers, is your office able to grant any waivers or initiate any investigations at this time?

[Lyne Robinson-Dalpé]

Waivers are in a section of the act. Therefore, in the case of public office holders seeking waivers for post-employment restrictions, we cannot provide those waivers at this point in time without a commissioner, because it's a requirement that the commissioner make that determination. It's the same thing with investigations.

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

No investigations or waivers can be granted.

[Lyne Robinson-Dalpé]

Not at this time.... However, as mentioned by my colleagues in May, we continue to monitor the activities of public office holders. If we have doubts, or if something comes to our attention that requires looking into, we will do that. We will do our due diligence on our side for when a commissioner is appointed.

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

For sure.

I appreciate that you can't or don't commence investigations at the request of the public, but can you say whether there has been public correspondence with respect to this matter? Is that something you can speak to?