Information & Ethics Committee on Sept. 18th, 2023

[Konrad von Finckenstein]

No, we don't redo everything.

We take the evidence and ask those drafting the report to explain the decisions they made and their reasoning. We take that and we look at it. Finally, we look at the decision, we determine whether it's okay, whether it's been adequately explained. If something is unclear or ambiguous, we can ask for it to be redone.

However, I feel that, in general, it's the same thing as when I was on the bench: When another person started the work, we had to ask ourselves whether there were questions of credibility or just questions of facts, reports, evidence, documents, and so on.

If the credibility isn't in question, we will continue what's already been started and render the decision. If the credibility is in question, we need to start over, because it's a personal matter. At the end of the day, it's my decision. I'm responsible for it. That means that I can't base myself on the testimony my predecessor received.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

I have a minute left.

If I understand your answer correctly, if, in the entire investigation process, something bothers you or seems worrisome, you can ask for a reinvestigation of some of the work that's already been done, and it may take another one, two or three months. If the investigation drags on and your term ends, your successor may ask exactly the same thing for the same investigation.

Could that happen?

[Konrad von Finckenstein]

Anything is possible, but I don't think it's very likely.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Thank you, Commissioner.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Gourde.

Thank you, Commissioner.

We go now to Ms. Hepfner for five minutes.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Thank you, Interim Commissioner, for joining us so early in your mandate. Ms. Robinson-Dalpé, it's good to have you here answering our questions, as well.

I would like to take you back. You mentioned a couple of times your experience on the bench. As someone who covered criminal courts for many years, I'm wondering if there are other aspects of that role as judge that you would bring to our ethical framework here in Canada, or other sensibilities? Do you know what I'm saying?

[Konrad von Finckenstein]

First of all, I didn't do criminal cases; I did only civil cases. I was at the Federal Court, so I dealt mostly with judicial review, which is basically the process. It's about looking at the process and making sure that the process was properly followed, that people had the necessary jurisdiction and came to the necessary conclusions, and that the conclusions were reasonably defendable. That's really it. You don't redo the situation unless it's unreasonable.

It is very close to what we have here. In effect, here you have rules. You have a code. You have an act. You have a situation. What is illegal? Is this reasonable? Does it produce a reasonable end or not? You have to apply a certain amount of common sense.

Second, I think what you always keep in mind when you are a judge is not only the decision you make but the unintended consequences or side effects. I would be deciding this little issue, and that's clear, but having decided that, does it have secondary or tertiary effects, which can be very negative or which nobody has taken into account?

It was the same thing when I was commissioner of competition or chairman of the CRTC. We were always worried about the unintended consequences. It's the same thing here, too. I will deal with somebody's conflict, given the precedent, but I also want to keep in mind the unintended consequences, making sure that there are no unintended consequences or that, at least to the extent I can foresee them, they are acceptable.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Going back to the changes in how new public office holders are informed of their duties under the act, maybe you can explain the difference. Now, for members who weren't just sworn in this week, how are they informed of their obligations on an ongoing basis?

[Konrad von Finckenstein]

Lyne, I think that's your domain.

[Lyne Robinson-Dalpé]

As most of you are aware, there's the review process that all members and reporting public office holders have to go through on an annual basis. That is an excellent opportunity for members and public office holders to have an exchange with their advisers and ask questions or be more sensitized to their obligations under the regimes.

There is also ongoing training on a monthly basis that is provided by the office. There are emails sent out to new public office holders to invite them to training, but we also offer training to any member or their office. If you want any training, we will gladly provide that training to you.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Would you say that engagement with your office has increased over the years, and if so, in what ways?

[Lyne Robinson-Dalpé]

I would say yes, definitely.

I spoke about the quarterly report. In it, there are some statistics as to how many people participate in the training sessions we offer. Levels are getting pretty high. People want to learn more about the rules, the application and our interpretation of the rules, because they need to know how the rules apply to them so they can abide by them.

Essentially, we are doing a lot of outreach, either through formal training or on our website. I encourage you to follow up with our office and take advantage of those sessions.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Further to that, do you have any other advice for public office holders who may be watching this today?

[Konrad von Finckenstein]

I think what my colleague said is, really, the advice: Get yourself informed before you do anything, because you are now in a job where you're going to be under a magnifying glass, to a certain extent. Your actions are going to be watched and they can have negative consequences for you. If you're informed, you won't do them. If you need any help, come and we'll help you. We'll have the door open to give you free advice.

[Lyne Robinson-Dalpé]

Can I just add to that? Please be mindful that all advice provided by our office is confidential. You can call our office at any point in time. It is strictly confidential. We will not publish or comment on any of this information publicly.

[The Chair, Conservative, John Brassard]

Okay, thank you. If you think it's a conflict, it probably is a conflict.

Thank you, Ms. Hepfner, Commissioner and Ms. Robinson-Dalpé.

We're going to go to five minutes.

If I understand correctly, Mr. Villemure and Mr. Green, you have no further questions.

We're going to go to Mr. Kurek, and then for a couple of minutes to Ms. Khalid. I think you're going to get off easy today, Commissioner.

Go ahead, Mr. Kurek, for five minutes.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

I'll pick up where my colleague left off. I believe there are two new parliamentary secretaries who have been appointed from the membership of this committee. I understand there could be some changes.

However, Commissioner, in the aftermath of the hot water that cabinet minister Mary Ng found herself in, in a sole-source contract with her campaign manager and best friend, the recommendation that was made by the previous commissioner, just as he had announced he would be retiring, was that cabinet ministers and parliamentary secretaries should take remedial training.

My question, Commissioner, is this: Have any cabinet ministers or parliamentary secretaries taken up the Office of the Conflict of Interest and Ethics Commissioner on the recommendation that they take remedial training, in light of those comments and that recommendation that was made by your predecessor?

[Konrad von Finckenstein]

Can you define “remedial training”?

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Supplementary training, a refresher course, I think, was.... I certainly wouldn't want to put words in the mouth of the former commissioner, but he was very frustrated that it seemed like public office holders were negligent in their understanding and certainly in their following of the rules of the act.

I'm curious. Did your office in fact receive any requests from ministers or parliamentary secretaries in the follow-up to making that recommendation? I believe it was in December that he made those comments.

[Konrad von Finckenstein]

As you've heard, I think many times, everything we do is confidential. If there is somebody who has dealt with us before but feels he hasn't understood and wants more, something more specific, etc., it comes very close to seeking confidential advice. I really can't comment on your question.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

I think a question that should be asked, certainly to the Liberal government writ large, is whether all of their cabinet ministers and parliamentary secretaries have taken that remedial training. Certainly, that's something I'd be happy to ask them.

Commissioner, because the investigation process is a quasi-judicial process, your expertise lends you credibility, I believe, in this role. However, Commissioner Dion shared a list of 49 standard questions that are asked of somebody who is being investigated. Commissioner, I'm wondering if it would be possible for you to table that and share any more about what an investigation might look like.

The reason I ask is that Canadians see your role and your office as key to that trust that is required with public office holders. For them to understand what takes place during an investigation, the thoroughness of an investigation, I think would be very valuable. We heard about a list of 49 questions. It would be great if you could table that and if you could outline a little bit about what an investigation would look like if somebody found themselves in one.

[Konrad von Finckenstein]

You know, it really depends on what the allegation is and what you do with it. That's exactly what we don't do, a pro forma “These are the questions we ask.” We look to see what the issue is. What are the allegations? What are the rules that apply? Then we will question, obviously, the person who makes the allegation. We will question the person who is the subject of an allegation, and any other witnesses who have something relevant to say. On the basis of that, we will then make a decision. The decision will be well explained as to exactly whom we talked to, what we asked them, what they said or what we heard, what conclusion we drew and whether we found something credible or not credible.

To do what you just suggested looks logical at first glance, but actually it does exactly the thing I don't want to do. These are individual cases for people who have a particular problem, etc., and we want to make sure we deal with the problem in a fair and honest way, in accordance with the code.

I don't want to come in with a pro forma approach or with a line of questions that drive you towards a certain solution, because that's serving neither the person nor the public. What I want to know is that somebody made an allegation about this. This is for the allegation. Here are the rules. Here is what we did. Therefore, the result is yes or no. That's the only way you can deal with it. You should not proceed with pre-set questions because, to a very large extent, that drives your investigation in a certain direction, which is exactly what you don't want to do. You want to be able to judge it on the basis of the person who is subject to the allegations.

[The Chair, Conservative, John Brassard]

Ms. Khalid, go ahead.

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

Thank you, Commissioner, for your time today. We really appreciate it, and the hard work that you do for Canadians and for our Parliament in ensuring oversight.

I just want to follow up on intersectionalities among a lot of questions that have been asked. My colleague asked about the role of social media in having an impromptu parallel inquiry, if you will, in terms of whether to come to a conclusion of guilty or innocent. We know the hyperpartisan nature and the extreme polarization, not just here in Canada but across the world, when it comes to ensuring trust in public institutions.

I'd really like to understand what you think about that. What are the measures, perhaps, we can use to ensure that before your results, before you make a decision, a decision is not made in the public space?

[Konrad von Finckenstein]

I don't think there's an answer to that. I don't think you can prevent the public from forming an instant judgment or listening to social media and coming to a conclusion.

In terms of the process, at the end of the day, the only thing we can do is ensure there is credibility in the process, to be as transparent as possible, as I mentioned several times, so that people understand what we are doing, why we are doing it and where we are going, and then, when it comes out, to explain it in terms that people understand. Don't hide it behind legalese and don't cite the act all the time, etc., but in effect put it in real terms so that people understand the situation the man was in and what he did. Then say that it seemed reasonable under the circumstances but it violated the rules, or, on the opposite side, that actually the person did seek advice and followed the advice and that, therefore, although it looks shady, it was actually perfectly permitted under the rules. That's the best you can do.