Procedure and House Affairs Committee on May 9th, 2006

[Bernard Shapiro]

I should add, relative to the response to your question, that the issue of who to speak to in advance of the decision being made is very difficult. It doesn't mean to say I shouldn't try to do it better than I have done. I don't want to say that. But it's very difficult. Frequently what happens is that the relevant information will be more easily available from other people, from people not in fact named. And we hesitate, of course, to go to any outside person mentioned before we go to that person, for sure.

Nevertheless, the suggestion you make is, I think, an interesting one, and one that I'd want to think through more carefully before I gave a full response.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Do I still have some time remaining. Splendid.

For example, an MP or a minister shouldn't have to learn from the media that the Ethics Commissioner has been asked to conduct an inquiry into his activities. You're probably much better acquainted with members of the press than I am. Imagine one of them phoning your office to confirm that you have been asked to investigate Mr. Marc Lemay. As soon as you've answered the question, that's it. There's no stopping things until the story is confirmed.

[Bernard Shapiro]

All I can say in answer to a question of that nature is that I have no comment.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Fine.

On another subject...

Is my time up already? Good heavens!

[The Chair, Conservative, Gary Goodyear]

Sorry.

Ms. Crowder, please.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Mr. Chair.

Thank you, Dr. Shapiro and Mr. Benson, for coming before us today.

You talked about the issue of public ethics and investigations, and you talked about criteria being somewhat loose but sufficiently convincing. Mr. Lemay's question prompted me to wonder what would actually be sufficiently convincing. Could you talk about what sorts of elements you would consider?

[Bernard Shapiro]

One of the presuppositions I make about ethical behaviour is that it always involves a conflict of values, and therefore judgments are constantly required to be made. It cannot be reduced to a set of simple rules--i.e., if you do this, then that's fine. Ethics are simply not like that.

The criteria I use in the first instance are the principles upon which the code is based--that is, both codes, and a set of principles upon which they're based. What I try to do is look at the material in front of me and say, “Does this threaten one of those principles in a serious way?” I can't know in advance just which of the principles are going to apply, just how it's going to threaten them. Each case will be quite different from another.

Those are the criteria I use, essentially--the principles.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

In effect, it largely does rest on the person in your office to use a fair amount of discretion.

[Bernard Shapiro]

That's right. I think that's true. And I think the same obligation devolves upon members who may launch inquiries on their own, so to speak. That is, when the member wishes to launch an inquiry about whoever, the same sort of discretion needs to be used. And I think it often is, so I don't mean that as a criticism, but it is not a question that's easy to reduce to a simple formula.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Just out of curiosity, in terms of the guidance that's provided for members, particularly new members who come on, certainly there are briefing notes available and certainly direct contact, but really it is reliant on the member then to seek out information in order to determine whether or not what they're doing is within the bounds of the guidelines.

[Bernard Shapiro]

The code requires members to give reasons and some substantiation for any allegation they might be making.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

I was taking a quick look at your annual report from June 2005. Among the challenges ahead, you mentioned access by citizens to the Ethics Commissioner. Certainly Mr. Reid touched on how people could access information through the office. What nature of inquiry would you get from the public?

I mean, this is a fairly broad statement, so....

[Bernard Shapiro]

What I didn't intend to mean by that statement was access by members of the public to the information inside the office. That's obviously not possible; it's confidential information. By access to the Ethics Commissioner, I simply indicated that we get a lot of calls and e-mails saying you should do X--you should inquire about so-and-so; you should do this; you should do that; you should do something else; I would like you to investigate Ms. So-and-so.

The legislation does not provide for that possibility. That is, I or members themselves are the only people who can launch an inquiry. We do get a lot of correspondence, either electronic or not, from people who say that in their district, X in essence happened--this person did that; that person did this; you should launch an inquiry against whomever. We respond by indicating that if they regard the matter as serious, they should deal with it with the local MP--or any MP, actually--who can then, if he or she is convinced, take action, and if not, not.

So there's no direct access. We refer them back to--

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

When you're talking about challenges around these issues, what were you talking about specifically, in terms of challenges on access by citizens?

[Bernard Shapiro]

I was talking about the kind of frustration that gets expressed in the material coming to our office from the fact that they can't do this. I'm not saying it's appropriate they should do it; that's a whole other question that needs to be carefully thought through. When I imagine the number of inquiries that could thereby be launched, it's a little scary. Nevertheless, that's another matter.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Can I take you up on that? When you say the number of inquiries that could be launched, I'm not sure what you're suggesting.

[Bernard Shapiro]

When you appear on a talk show, let's say on television or on radio, subsequent to that you get an endless number of communications suggesting you should do A, you should do B, you should do C, you should do D, and asking why you're called the Ethics Commissioner in the first place if you can't do these things, and saying it's an outrage. The mere existence of the Ethics Commissioner creates a level of expectation in the public about response to issues that are important to them. That level of expectation had not been envisioned; let me put it that way. It's a challenge to educate people and say no, this is a serious matter--you have an MP; this is the appropriate route; you don't come directly to us.

Another kind of challenge relative to access to the Ethics Commissioner is that in many ways people think of the Ethics Commissioner as a kind of federal ombudsperson, so when they've exhausted all the possible appeals inside, let's say, the Department of National Defence and don't like the result, perhaps appropriately, they'll call up to tell us it's an ethical issue, and they want us to do something. That's not what was intended in the creation of the office. Whether it should be is, again, a different policy question, but it's certainly not what was originally intended. It becomes a challenge simply to deal with the onslaught of people. We need to respond to them in some way that makes them feel the matter is serious and that we take ethics seriously, but this is not the way to go about it.

[The Chair, Conservative, Gary Goodyear]

Thank you.

Colleagues, we'll move to round two. Again I'm going to cut it back to five minutes for each question.

Mrs. Redman, please.

[Karen Redman, Liberal, Kitchener Centre, ON]

Thank you.

I have a few questions that aren't necessarily connected. I've just been reviewing the section on sponsored travel. In your view, would it be a breach if somebody was donated money or received a gift of money from a private individual and did not report it? I see that it looks as though one member reported that. If it were in some foreign country and somebody was personally given money, would the assumption be that it would show up here?

[Bernard Shapiro]

My view is that if you've paid for the travel yourself, it is not sponsored travel. If there is a donor involved, whether a private individual or somebody else altogether, then it is sponsored travel and should be reported.

[Karen Redman, Liberal, Kitchener Centre, ON]

Again, what would be the repercussion if this came to light after the fact? Would they then merely have to report publicly if it had been an error or an omission?

[Bernard Shapiro]

That's right.

[Karen Redman, Liberal, Kitchener Centre, ON]

Would these rules be the same for public office holders as well?

[Bernard Shapiro]

The situation for public office holders involves another level of judgment that goes into the matter as to whether the donor in any particular case has some inappropriate relationship to the government, in the sense that they may be involved in sponsoring something that's currently under discussion or part of the responsibilities of the department for which this public office holder is responsible, so there's another set of questions we ask just to ensure that if they're accepting the gift, not only is it publicly declared, but it is also appropriate in the first place, and that's a matter of judgment.

[Karen Redman, Liberal, Kitchener Centre, ON]

There again, if you felt it was inappropriate, you would then go to the Prime Minister and it would not be made public, and it would be up to the Prime Minister to then act on that?