Evidence of meeting #13 for Access to Information, Privacy and Ethics in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was quebec.
A video is available from Parliament.
Conservative
Michael Cooper Conservative St. Albert—Sturgeon River, AB
I understand that. I understand that you can make only recommendations and then it's up to the assembly, but what would be the range of penalties, on a monetary basis, that you could recommend?
Ethics commissioner of Québec, Commissaire à l’éthique et à la déontologie du Québec
As I don’t have a scale, it would be whatever I deem appropriate at the time. I can’t comment on a scale, as it’s very hypothetical. It really depends on each individual case.
Conservative
Michael Cooper Conservative St. Albert—Sturgeon River, AB
Are we dealing with a few hundred dollars, thousands of dollars, tens of thousands of dollars? I'm trying to get an understanding. In our Conflict of Interest Act, the penalties are very minor on a monetary basis.
Ethics commissioner of Québec, Commissaire à l’éthique et à la déontologie du Québec
Yes, but as I understand it, the penalties provided for in the Conflict of Interest Act are really administrative penalties for failure to produce documents or delay in producing documents, which is not the case at all in the code. I would not see myself imposing penalties for a delay in production. There is no equivalent volume: in Quebec, there are 125 elected officials and also chief of staffs, but that is very few. So I don’t have a problem with non-production of declarations or delays in producing these declarations.
Conservative
Michael Cooper Conservative St. Albert—Sturgeon River, AB
Okay. Thank you.
Commissioner Motherwell, what sort of sanctions may you impose under the Members' Integrity Act?
Integrity Commissioner of Ontario, Office of the Integrity Commissioner of Ontario
I think it's first important to understand what circumstances would lead to the ability to make a recommendation on penalty. It must come as the result of an inquiry I would have conducted, where I would have received a request from one member who believes that another member may have breached the Members' Integrity Act or parliamentary convention.
After conducting that inquiry—which is, incidentally, filed with the Speaker of the Legislative Assembly and also published on the website—if I conclude that there should be a penalty, I have four options. I can recommend that no penalty be imposed. I can recommend that the member be reprimanded. I can recommend that the member's right to sit and vote in the assembly be suspended for a certain period of time, or until such time as certain conditions are met, which I would set, or I could recommend that a member's seat be declared vacant. There are no monetary penalties provided within the legislation. Of course, as you yourself noted, it is then either to be accepted and voted on by the assembly or rejected, as it sees fit.
Conservative
The Chair Conservative John Brassard
Thank you, Mr. Cooper and commissioners.
Ms. Church, you have five minutes. Go ahead, please.
Liberal
Leslie Church Liberal Toronto—St. Paul's, ON
Thank you, Mr. Chair.
Commissioner Motherwell, I have a couple of questions, probably pretty short.
Coming back to the notion of a blind trust, you mentioned that once a blind trust is established, it takes away the conflict. I think that was your testimony. Who can be a trustee? If someone is setting up a blind trust in the Ontario model, who can step in and provide that role of trustee?
Integrity Commissioner of Ontario, Office of the Integrity Commissioner of Ontario
The first element is that the trustee must be at arm's length from the member. Then I must interview the trustee. The member may propose an individual. We've certainly had circumstances where they've proposed a relative. The relative may be professionally qualified to undertake that, but we have declined and said, “That doesn't meet the arm's length test, obviously. Please go back and find somebody else.” They will then come back with another individual.
They can be from all different walks of life. Generally, some of them are professional corporations that undertake trustee business as a natural part of their business—banks and that kind of thing—or it could be an individual. It could be a CPA or someone with that kind of background.
Liberal
Leslie Church Liberal Toronto—St. Paul's, ON
What sort of guidance does your office provide to the entity or to the individual who is stepping in as trustee?
Integrity Commissioner of Ontario, Office of the Integrity Commissioner of Ontario
We provide extensive guidance to them. We've developed a small portfolio of resources that we provide to them, and we make it very clear what the expectations are. Then, of course, there's the development of the trust agreement first.
Generally, we find that ministers will engage legal counsel. We have some templates we provide to them so that they get an idea of what the structure of this needs to look like. We receive that and push it through our own legal counsel, and there's a bit of discussion back and forth.
Once we determine the agreement is satisfactory, we will then have those parallel conversations with the trustee because, essentially, they can have an input into the agreement itself. However, it's their responsibility to fulfill all the obligations, the requirements of the trust.
There are different reporting structures. There's the understanding of exactly how these communications will work. As I indicated, they're not permitted to speak with the minister. All communications must run through me.
For example, a very simple thing is that the trustee must develop some documents in order for the minister to be able to submit their taxes once a year. For any information that is provided to the minister on something simple like the kind of information needed to complete their taxes, I must approve it.
I can tell you that many times I have received documents from trustees and have determined that there is far too much information in the document, so back it goes, and we ask for information to be redacted. The document is revised, and when it meets our standards, we will provide it to the minister. If the minister has any questions, they come back through us.
Liberal
Leslie Church Liberal Toronto—St. Paul's, ON
I would assume there are clear restrictions, either in the agreement or in the advice that you provide to a prospective trustee, that restricts them from communicating with the office-holder, in this case, about the nature of the assets or about any development of the assets in the trust.
Integrity Commissioner of Ontario, Office of the Integrity Commissioner of Ontario
That's stated very clearly, yes.
Liberal
Leslie Church Liberal Toronto—St. Paul's, ON
Likewise, are there restrictions on the public office holder in terms of directions that the individual may give to the trust at its creation?
Integrity Commissioner of Ontario, Office of the Integrity Commissioner of Ontario
At it's creation....
Liberal
Leslie Church Liberal Toronto—St. Paul's, ON
In other words, the public office holder can't direct the trust. You can't direct the trustee on how to hold, sell or handle the assets.
Integrity Commissioner of Ontario, Office of the Integrity Commissioner of Ontario
No. As I said, it's any communication after the trust has been implemented at that point, any communication related to this. They understand this going in. They understand that they're not going to be receiving their investment statements. They're just not going to see that information. I'll give you an example.
Sometimes there are situations where they're sending a kid off to school, and they'd like to be able to tap those assets and perhaps pull a little money out. Again, that kind of request comes to this office first. We relay the request to the trustee, and the trustee does whatever they need to do in order to release those funds.
Liberal
Leslie Church Liberal Toronto—St. Paul's, ON
In Ontario, do you do what we do federally, which is to have a disclosure of the assets prior to the trust being created?
Integrity Commissioner of Ontario, Office of the Integrity Commissioner of Ontario
Yes, there's full disclosure to me, to the commissioner.
Liberal
Leslie Church Liberal Toronto—St. Paul's, ON
This question is for both of you.
How would you characterize the use of trusts in recent years? Is this being used more or less? Are we seeing more use of this as a tool for managing ethics and integrity?
Integrity Commissioner of Ontario, Office of the Integrity Commissioner of Ontario
It's entirely dependent on the assets that the minister has when they come into office. It will depend on who the people are, what their backgrounds are and what they hold. As a result, it's not an environmental piece, or it's not as a result of seeing more trusts now because more people are investing in the market. It really just depends on the nature of the individual's assets when they come in and what their background was.
Conservative
The Chair Conservative John Brassard
We're over time. I know you asked Madam Mignolet the question as well.
Can you answer the question in 30 seconds, Ms. Mignolet?
Ethics commissioner of Québec, Commissaire à l’éthique et à la déontologie du Québec
Yes.
As Commissioner Motherwell said, it’s on a case-by-case basis, and it depends on the minister’s assets. The code is very specific and very clear about what must go into trust and what must not, and it depends on what the minister owns.
Conservative
The Chair Conservative John Brassard
Very well. Thank you, Ms. Mignolet.
Mr. Thériault, you have the floor for five minutes.
Bloc
Luc Thériault Bloc Montcalm, QC
Thank you, Mr. Chair.
Commissioner Mignolet, I will continue our discussion. You said earlier that, with regard to conflict of interest filters, you did not see the point of conducting a daily review. I completely agree with you, but between a daily review and nothing at all, or waiting for a complaint, it seems to me that there is a happy medium to be found.
You will agree with me that the supreme authority around the cabinet table is the Prime Minister. As long as the Prime Minister exercises his authority over a minister, with the help of a chief of staff or the Clerk of the Privy Council, that is fine. However, when it comes to the Prime Minister himself and his ability to recuse himself, and when conflict of interest filters are applied to a prime minister, the management of this should be verified or reviewed, if not on a daily basis, then at least in exchanges.
Mr. Duff Conacher of Democracy Watch drew our attention to the definition of “private interest” in section 2 of the Conflict of Interest Act. According to the act, a private interest is not covered in a decision or matter of general application. Mr. Conacher argues that it is all well and good to say that one has the power to recuse someone, but the act will not apply to 99% of the decisions and actions taken by the most powerful people in government.
In this sense, do you not consider that the highest office implies the highest level of exemplary behaviour and transparency, and that, as such, a way must be found to apply these conflict of interest filters differently from the code or the act, depending on whether it is the Prime Minister, a minister, a member of Parliament or a public servant? There must therefore be a differentiated approach, and to achieve this, a mechanism must be found to ensure a minimum level of accountability without waiting for a complaint.
You will agree with me that a chief of staff is a subordinate and may indeed have an interest in ensuring that his or her prime minister is protected, but that does not mean that, in decisions of general scope, his or her prime minister is immune from the appearance of a conflict of interest. Do you agree with me that the position of prime minister involves higher standards and greater oversight?