Evidence of meeting #22 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 brookfield.
A video is available from Parliament.
Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Could you rephrase your question?
Liberal
Abdelhaq Sari Liberal Bourassa, QC
Okay.
For the moment, is there a loophole that allows any public office holder to avoid their ethical obligations?
Does the system have any gaps right now?
Commissioner, Office of the Conflict of Interest and Ethics Commissioner
As I said before to your colleague, I think we have one of the best systems out there. We just want to improve a few aspects of it. Compared with other countries, such as European countries or the United States, our system is fabulous.
The conflicts of interest that I have investigated are very minor. At no point has there been a situation where someone has become rich because of a decision they made.
Liberal
Abdelhaq Sari Liberal Bourassa, QC
If we were to amend the Conflict of Interest Code for Members of the House of Commons to include the appearance of conflicts of interest, do you think that some competent people may decide not to get involved in politics?
Those people might think that if it's so complicated to get into politics, it isn't really worth doing so.
Conservative
Commissioner, Office of the Conflict of Interest and Ethics Commissioner
The appearance of conflicts of interest is really at the heart of all this. On the one hand, the public wants to know whether or not there is one. On the other hand, it's very hard for an elected or appointed person to act and do their job without creating the appearance of conflicts of interest. The question is how to strike a real balance between those two aspects.
We want to add a general obligation to the Conflict of Interest Act, as is the case with the code. It would be a principle whereby people have to avoid the appearance of conflicts of interest.
Conservative
The Chair Conservative John Brassard
Thank you, Commissioner.
We're going to go to Mr. Barrett, followed by Mr. Maloney, for five minutes.
It will then be Mr. Thériault for two and a half minutes.
Then I'm going to suspend for a bit, just to take a bit of a break, and then we're going to come back for the second hour.
Mr. Barrett, go ahead please, for five minutes.
Conservative
Michael Barrett Conservative Leeds—Grenville—Thousand Islands—Rideau Lakes, ON
Commissioner, I want to circle back to our conversation about the budget implementation act. I'm going to read an excerpt to you from it:
a minister may, by order, for a specified validity period of not more than three years and on any terms that the minister considers appropriate, exempt an entity from the application of
a) a provision of an Act of Parliament, except the Criminal Code, if the minister is responsible for the Act;
and specifically that:
The minister may exclude information that, in the minister’s opinion, would be inappropriate to make publicly accessible for reasons that include safety or security considerations or the protection of confidential or personal information.
It seems to me that there's an absence of safeguards here, because we're looking at the opinion of a minister to make a decision about whether or not to allow for the publication of a decision to create an exemption to an act of Parliament. For the same reason that it ought not to apply to the Criminal Code, I posit that it ought not to apply to the Conflict of Interest Act as well as to the Lobbying Act.
I'm interested in your opinion for the very reason that this matter is under consideration before the House. Frankly, this stands to limit your ability as an independent officer of Parliament to discharge the watchdog role Canadians expect you to be able to discharge.
Commissioner, Office of the Conflict of Interest and Ethics Commissioner
This is your interpretation of Bill C-15. Undoubtedly, if Bill C-15 in its present form is enacted, this particular issue will be litigated at some point in time. I hear your interpretation. I'm not sure I necessarily agree with it. As I told you before, it's not an act and I didn't expect to be asked to comment on a bill that's before Parliament. Once it is enacted fully, I certainly do not see that action under that act and the provision that you act automatically protect you from the Conflict of Interest Act and allow you to take decisions that clearly benefit you. Not you, I mean the person involved.
Conservative
Michael Barrett Conservative Leeds—Grenville—Thousand Islands—Rideau Lakes, ON
I think the core problem and the reason that I raise this with you today is that we have an opportunity to address this before the matter is voted on by members of the House. I think that a minister could legally conceal information that you need to assess whether a conflict exists. That's the fundamental problem with this provision.
Commissioner, Office of the Conflict of Interest and Ethics Commissioner
I understand your position. As I say, this will undoubtedly be litigated if ministers take that position and we will see what the courts have to say. Or else, since the bill is still in committee, you can amend it before it gets passed.
Conservative
Michael Barrett Conservative Leeds—Grenville—Thousand Islands—Rideau Lakes, ON
We would litigate those issues if we knew, if we were to ever know, about the decisions that were taken. That's the problem with secret orders.
I have just over a minute in this round left.
Commissioner, Office of the Conflict of Interest and Ethics Commissioner
On that point, again, I keep saying if it is that it's normally prohibited but an exemption has been granted, surely somebody is going to say, on what basis are you doing it? The act says the only answer the minister can say is because I exempted it. It is not secret.
Conservative
Michael Barrett Conservative Leeds—Grenville—Thousand Islands—Rideau Lakes, ON
It says:
The minister may exclude information that, in the minister's opinion, would be inappropriate to make publicly accessible for reasons that include (....) personal information.
It's a pretty broad scope, and who is going to test the minister's judgment? That's why decisions are to be gazetted. That's why they're published in the Canada Gazette. That's why we have reports tabled in Parliament. That's why we have independent officers of Parliament. It's so that we have transparency. When politicians are able to take decisions in secret based on their opinion, then it seriously erodes the public's confidence, Canadians' confidence, in our democratic institutions and the executive should not seek, nor should they be given, this level of power.
Commissioner, Office of the Conflict of Interest and Ethics Commissioner
There are two things with your answer. The first is what's personal information and how you determine that. Secondly, if your scenario is true and plays out, etc., then the electors will have a negative affection and the electors can obviously remedy the situation. There's a pretty risky scenario you paint here that somebody will deliberately do this in order to protect their conflict of interest.
Conservative
Michael Barrett Conservative Leeds—Grenville—Thousand Islands—Rideau Lakes, ON
If you give a monkey a loaded gun, whose fault is it when someone gets shot? The person who gave him the gun or the monkey?
Conservative
The Chair Conservative John Brassard
Thank you.
Mr. Maloney, go ahead.
I'm going to stick to the strict timelines here. I have to just to make sure we get everything in.
Go ahead.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Thank you.
I'd like to, first of all, thank you for being here today. You have a very demanding job, and today is an example of the patience required to fulfill your role, so I just want to express my gratitude.
I'm going to go off topic here a little bit—not off topic, but I'm going to change the focus. The problem with the ethics rules and the Conflict of Interest Act is that they become weaponized time and time again by politicians, which I find not only wrong but incredibly offensive.
Mr. Barrett's talking about the integrity of the institution, the integrity of people.... Weaponizing this process does just that. I can give you very specific examples of where the rules and reports have been weaponized to no end and people regret it.
We're supposed to be doing a statutory review of the legislation here. I've been here for two meetings. I've heard very little in the way of questions about amending the statute. What I have heard is a number of allegations that have not been substantiated or proven, and there's no evidence to support them, which is what undermines the integrity of the whole process. What you see here is a bunch of allegations, you know, throwing around the Prime Minister's name quite loosely, and there has been not one iota of evidence or proof to substantiate any of this. It's also not what we're here to do, which takes me to what Mr. Barrett was talking about.
This provision in Bill C-15—and I'll quote him quoting the bill—says, “if the minister is responsible for” that.
Now, here's my first question. All these screens, these ethics screens and processes are put in place before a politician assumes a role or immediately upon their assuming the role, i.e., when they get elected or when they get appointed to cabinet. Is that correct? Okay.
Nowhere has Mr. Barrett suggested that, in this proposed legislation, that would imply that a cabinet minister could then go back and amend the ethics legislation to exempt him from anything. That's because it's not in there. In fact, his language says, “if the minister is responsible for that act”.
The legislation we're talking about falls under the jurisdiction of the President of the Treasury Board. Isn't that correct? So, the defence minister or the finance minister or any other minister could not, in any conceivable fashion, put forward a piece of legislation and, therefore, exempt himself from any requirements under the ethics act. Is that correct?
Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Yes, absolutely.
You're talking about the quotation that Mr. Barrett read. I don't have it in front of me. I don't see..., but if, as you stated, the exemption can only be done by the minister responsible for the act, that minister is not responsible for the Conflict of Interest Act—you're absolutely right.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
That's correct. Thank you.
The other reference he made was that the minister can withhold information, but it's not the minister's personal information that we're talking about. It's information related to the subject matter or whatever piece of legislation might be before the House. So, again, it's a mis-characterization of what is contained in Bill C-15.
I guess, really, what I want to know from you is whether you see a way forward so that the government or the House of Commons can amend this legislation so that it can no longer be weaponized in a way that undermines the integrity of me, everybody sitting around this table and every person in the House of Commons.
Commissioner, Office of the Conflict of Interest and Ethics Commissioner
I have just now given an interpretation that suggests that it can't be done in any event, but clearly you could make an exception to any act other than the Conflict of Interest Act. You could just put that into the legislation. That would solve the issue.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
That's correct. That would solve the alleged issue raised by Mr. Barrett, which actually isn't in Bill C-15. However, my question is this: Can you think of anything else, any other provision in the act or acts, that would prevent or that would allow for consequences for weaponizing this process?
Commissioner, Office of the Conflict of Interest and Ethics Commissioner
I don't know. You call this weaponizing, but really, if we have the Conflict of Interest Act the way we have it now and they administer it, it's really, I think, generally regarded as being neutrally and objectively administered. We have remarkably few conflicts of interest in this country over issues of breaches. Other jurisdictions come to talk to us about how they can learn from us and adopt a law similar to ours.
As for weaponization, it's a normal political process of debate and partisan dialogue. I don't think you can deal with that legislatively.