Evidence of meeting #31 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 communication.
A video is available from Parliament.
Commissioner of Lobbying, Office of the Commissioner of Lobbying
There is no monthly communication report with those individuals if this person was lobbied. I don't know to what extent there was lobbying occurring.
Conservative
Michael Cooper Conservative St. Albert—Sturgeon River, AB
Whether or not you want to concede it was a circumvention, but you concede that it's certainly the result, do you have any recommendations so that this sort of thing doesn't happen in the future?
Conservative
The Chair Conservative John Brassard
We're going to have to come back to that, Mr. Cooper.
Ms. Church, you have five minutes.
Liberal
Leslie Church Liberal Toronto—St. Paul's, ON
Thank you, Mr. Chair.
Welcome, Commissioner.
I wanted to pick up on a couple of your later recommendations around the regulation-making power, for starters. Could you describe why those powers are necessary and what circumstances you think they would be most useful in? What would they encompass?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
That recommendation is definitely out of the box. One of the reasons I made the recommendation is that the current regulations were in place in 2008, and they haven't been touched over the years. I'll give you a very specific example. On the subject matter, so the list of the types of things that people talk about—environment, health—these are topics that are provided by regulation. They were created in 2008. Some of the language in some of those is no longer appropriate, and they've never been updated.
In our office, we're the ones who know how to update the registry to make it more in line with the current times. For example, climate is not in that list. There's a category called “other”, and people were writing all sorts of things. I took the liberty of adding climate, economic development and budget to that list of “other”, which I'm not really sure I have the authority to do; but I added that as a list of items for people to add, because they've never been updated. That's one example.
I still think there should be a process in place—and this is not my asking for free power. As an independent agent of Parliament, it's somewhat uncomfortable to have to go through the department of the day to make changes to regulations that would help to modernize the registry, for example. I should have to come through this committee or through Parliament to be able to do that. I should be able to do that without having to go through the department.
Liberal
Leslie Church Liberal Toronto—St. Paul's, ON
Just to clarify that, because you do mention having an oversight process in place, do you see this committee or Parliament as that appropriate oversight?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
Yes, it could be, but this would probably be very novel.
Liberal
Leslie Church Liberal Toronto—St. Paul's, ON
Are there examples of this in other regimes where these powers exist?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
Not in the provincial.... I know that Quebec is going to be asking for it. The other regimes at the federal level are tribunals. The CRTC, for example, has powers to make regulations. It still goes through the Governor in Council. I think the Canadian Transportation Agency has a power to make regs that go through the Governor in Council. There aren't many models, and I know this is really pushing it, but it's to try to find a way to keep the registry, the issues and the items more modern without having to go through a big legislative review and do them through regulations, which is why some of the recommendations touch both.
Liberal
Leslie Church Liberal Toronto—St. Paul's, ON
Is the primary issue there on the disclosures the nature of the theme of the communication or of the public policy area that's being communicated on?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
That's one example, because there's a list. There is nothing about COVID, for example. None of us would have known in 2008 that there would have been communications about COVID and vaccines, for example. “Health” is the topic that people would write. If there's a way to constantly adapt, be flexible and be on top of creating a list that's more modern and more flexible, that would be a really good thing.
Liberal
Leslie Church Liberal Toronto—St. Paul's, ON
The other recommendation I wanted to ask you about was with respect to enforcement of orders by the Federal Court. Could you help us understand a bit more about the circumstances where you think that would be necessary?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
Currently, the Lobbying Act provides that I have the same powers as any superior court to issue production orders and subpoenas. Should somebody not abide by the production order or subpoena, you would have to have contempt proceedings. Those contempt proceedings currently would likely have to go to the province where the organization is instead of the Federal Court. The Federal Court is a statutory court that takes its powers through statute, and right now it can review my decisions, but it can't necessarily do contempt proceedings related to my orders.
Regarding the Canadian Human Rights Commission, I gave examples that we have precedents for, and all that would happen is I would table my production order or my subpoena in Federal Court and it would become an order of the court, and any contempt proceedings would be in front of the Federal Court.
Conservative
Bloc
Luc Thériault Bloc Montcalm, QC
Earlier, you talked about paid work and unpaid work.
In your practice, have you seen many cases where this situation arises?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
Yes. There are a lot of people from associations, organizations and groups who say they aren't paid at all. According to them, they don't need to register. This happens on a regular basis.
Sometimes I tell them to be careful. These people belong to associations and all claim to be volunteers, but they wouldn't be in that association if it weren't for their employer. So I tell them that, if the communications benefit their employer, and not just the association, they must register.
My goal is not to prevent volunteer groups from contacting you or to impose an obligation. We have to find a happy medium. Some organizations are truly made up of volunteers, while others are associations whose members claim to be volunteers.
Commissioner of Lobbying, Office of the Commissioner of Lobbying
Are you talking about the last recommendation?
Bloc
Luc Thériault Bloc Montcalm, QC
Yes. I was very surprised when I read it. You have no immunity. In a sense, that means that people could tell you that they'll sue you if you continue along this path.
Has that ever happened? Is that why you are making such a far-reaching recommendation?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
No, it hasn't. We're lucky.
However, I think there is a common law principle that would protect us, because we do the work as part of our duties. That's obviously an oversight, because all agents of Parliament have that immunity. We're the only ones who don't. I think that oversight needs to be rectified.
Bloc
Luc Thériault Bloc Montcalm, QC
In addition, it would provide a framework for your work or protect you from consequences with respect to certain tasks or powers that you want to have.
Is that correct?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
Of course.
Bloc
Luc Thériault Bloc Montcalm, QC
So we're talking about the power to issue orders, the power to disclose information and the power to do the work yourself, without having to communicate with the RCMP.
Is that correct?
Commissioner of Lobbying, Office of the Commissioner of Lobbying
Yes, that's exactly it.
I'm a firm believer in natural justice procedures. If we have the power to impose penalties, the act must provide for procedures.
There's always the principle of judicial review. However, I want to avoid criminal or civil proceedings, so I think we need that immunity.
Bloc
Luc Thériault Bloc Montcalm, QC
One of your recommendations calls for the disclosure of each appeal to the public.
We don't see examples of that in other provinces. Can you give us an example of an appeal to the public that would require disclosure?