Procedure and House Affairs Committee on Oct. 6th, 2009

[The Chair, Conservative, Joe Preston]

I welcome all of the committee members back. I'm happy to have you all here today. We're in public today and have the Conflict of Interest and Ethics Commissioner with us today.

Pursuant to Standing Order 108(3)(a)(viii), we're discussing matters related to the conflict of interest code, specifically the annual report on the Conflict of Interest Act.

Madam Dawson, I believe you have an opening statement and that you'll introduce the guests you brought with you today, and then we'll go to questions.

[Mary Dawson, Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner]

Thank you, Mr. Speaker.

With me is Lyne Robinson-Dalpé, the assistant commissioner for compliance and advisory; and Mr. Eppo Maertens, the acting assistant commissioner for learning and communications, as we're now calling it.

Mr. Chair and members of the committee, thank you for inviting me to appear before you today. I am pleased to have this opportunity to speak about my annual report with respect to the Conflict of Interest Code for the members of the House of Commons and about the work of my office.

As I stated in my annual report, the past fiscal year has been a year of significant activity in administering the Conflict of Interest Code for members of the House of Commons.

Following the October 14, 2008, election, 68 new members became subject to the code, and my office has assisted them in making the necessary arrangements to comply with it. This involved members submitting detailed confidential disclosure statements to my office. They were reviewed by advisors who discussed potential conflict of interest risks with them and outlined the steps they were required to take to comply with the code. My office also reviewed the compliance arrangements of all returning members, and where necessary has been working with them to update the arrangements they made previously to comply with the code. To date, 284 members--we've just had two extra from yesterday, when we submitted this report--are in compliance with the code.

Throughout their terms, members must also file additional statements as needed. These are required in connection with the receipt of gifts, sponsored travel, and material changes to information required to be provided. We work with members to assist them in making the necessary arrangements. In addition, we regularly receive phone calls, e-mails, and letters from members with questions on the application of the code to specific situations. Responding to these requests for advice is among the most complex aspects of the advisors’ work, as most of the questions raised with my office involve situations in which the application of the code is not immediately apparent. I’m particularly proud of the work done by my advisors, and I believe it accounts, in large measure, for the infrequent need to conduct investigations.

In response to the 54th report of the Standing Committee on Procedure and House Affairs of the 39th Parliament, my office has undertaken a number of educational activities. Last November I participated in the Library of Parliament’s training program for new members. This spring my office, in cooperation with party whips and caucus chairs, made presentations on the code to members’ staff. On Friday, October 23, I'll be offering an information session on the recent changes to the code approved last June, which were largely with respect to gifts. It will be in the Library of Parliament seminar series.

I have also taken advantage of a number of opportunities to speak publicly about my role in an effort to increase the overall awareness of the conflict of interest regimes, both of members of the House of Commons and of public office holders. Other outreach activities include redesigning our website to make it more user friendly. As well as being easier to navigate, it now hosts an online registry that provides the public with easy access to the information that members are required to disclose publicly. This change responds to a request made by the Standing Committee on Procedure and House Affairs of the 39th Parliament, again, in its 54th report.

I worked closely with this committee over the past year and appeared before you on December 4, 2008, to outline some of the concerns I had with the provisions relating to gifts and other benefits--as most of you will remember--as well as a few other issues. I appeared before your subcommittee on gifts on several occasions and was pleased to see that most of my comments and suggestions were reflected in the amendments to the members’ code approved by the House of Commons on June 4. I note that the committee has approved forms related to members’ disclosure requirements this past year, as well as some technical amendments to the code that I have suggested. I would like to thank the committee for its attention to all these matters.

In addition to reporting on the various activities I've just described, my annual report addresses some challenges I've encountered over the past year in administering the code, and I'd be pleased to discuss any of them with you. One issue I highlight in my report relates to my ability to comment on investigative work that does not lead to an inquiry. The code prevents me from making any public comment relating to a preliminary review or inquiry. The purpose of this prohibition is to prevent attention being drawn to allegations of wrongdoing unless and until the commissioner has conducted an inquiry and issued a report on the matter. This, of course, reflects the important principle of procedural fairness, and my office takes care to ensure that investigative work is conducted in confidence.

There are, however, certain occasions where I believe it would be in the interest of members for me to be able to communicate the results of a preliminary review. In particular, I have in mind cases where the allegations in question have been made public, either by the member requesting the inquiry, through media reports, or in some other way. It would often be instructive and serve the interests of transparency to make public some of my considerations in not taking the matter further. It would be helpful if I were permitted to make public my reasons for not proceeding with a request for an inquiry where I believe that doing so would be in the public interest.

The committee might wish to consider this issue further.

Mr. Chair I appreciate the committee taking the time to review my report and examine these issues. I am happy to answer any questions you may have.

[The Chair, Conservative, Joe Preston]

Thank you very much, and that's what we'll do.

Madam Jennings will be going first.

Madam Dawson, I visited your website this morning—you mentioned it in your opening remarks—and found it very easy to navigate, so congratulations on how well that looks.

Madam Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you, Mr. Chairman.

Thank you, Commissioner.

Your report shows, and you have stated, that 284 members have complied with the code. Do you mean to say that they have filed their statutory statement?

[Mary Dawson]

Yes.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

There are 308 seats, 4 of which are vacant. The Prime Minister has actually just triggered by-elections in these four ridings. There are therefore 304 members duly elected or re-elected during the 2008 election. The election took place almost exactly one year ago, and 20 members have yet to fulfil their obligations.

[Mary Dawson]

Yes, and I'll tell you why. However, I will do so in English.

Some reports from members are more complicated than others, so sometimes it takes time to sort out the details of how they can comply with the code requirements.

In fact, I can give you the breakdown. There are two files in our office that we're sorting out how they should comply, and there are 18 that are outstanding. I can ask Madam Robinson-Dalpé to say more perhaps, but that basically means we're waiting for their final statement or for the approval of their final statement.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

There's a big difference between waiting for their final statement and waiting for your approval of their final statement.

[Mary Dawson]

I misspoke, actually. We're waiting for more information from them, or we're waiting for them to approve the final statement.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

In that case I would suggest this committee may wish to look into the possibility of tightening up the rules. We might want to look at the delay and possible penalty or whatever.

I think that's something this committee should be looking at. I don't think it's normal that 12 months after there's been an election, for instance, you still have 20 outstanding cases that are so complex, or the MPs are exhibiting a lack of diligence such that you're waiting for clarification statements from them...that one year isn't sufficient to sort it out.

[Mary Dawson]

It would seem to be a long time. I note, as well, that in the act, which we also administer, there is a 120-day deadline to complete their--

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

There you go. That's a subject the committee can discuss further.

My second question has to do with your request for a potential amendment to the code which currently prohibits you from making public comments with respect to a preliminary review or inquiry. You noted some situations where you could at least publicly state your grounds for closing a file and not triggering an investigation.

In raising these questions, have you considered some restrictions? Do you have suggestions? If, for instance, a member's conduct is the subject of a complaint before the commissioner, must the member provide his authorization? Have you considered these options?

[Mary Dawson]

In a general way; we've not sat down and actually drafted out any proposals or anything. But maybe if there was the discretion to disclose the reasons why we did not proceed...always considering the public interest. There may be situations where one shouldn't do it.

I could add as well that generally those provisions on the inquiries are a little bit confused. We're working with them, and it's not a big problem--we've kind of determined how we're going to function with them--but if you were doing a study of the inquiry provisions, you might want to take a look at redrafting the body of some of them. For example, I think it's subsection 27(4) that gives me the power to self-initiate. It's a little bit unclear just what that power is and how it interrelates with the other rules.

So depending on how much or how little study you'd like to do on this, there would be a quick fix, probably, for the issue you raised, but it might be worth looking at the totality of the provision.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

But take the prohibition on the commissioner of any public commenting on investigations or a study of complaints to determine whether or not there are sufficient grounds to go forth with an investigation, etc. The heart of that prohibition is to preserve the rights of the MP whose conduct has become subject to a complaint, to ensure fairness in that.

Do you not think, at least as a first thought, that any discretionary power that this committee might decide to confer upon the commissioner to make public comment should be subject to prior approval of that MP?

Now, whether or not it works to the MP's favour, that would be the decision of the MP to make.

[Mary Dawson]

That's a good suggestion, I think.

As I say, I haven't thought through all the parameters, but that would probably be a good caveat.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I would suggest that you think about it.

[Mary Dawson]

Yes.

[The Chair, Conservative, Joe Preston]

Great. Thank you.

Mr. Albrecht.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair.

Thank you, Madam Dawson, for appearing today.

I notice in your report, at the top of page 2, that you comment on some of the significant changes we've made as a committee. As you point out, the changes were approved by the House of Commons in June. There was a change in the approved forms, which this committee approved. I think those were significant improvements.

But then I go back to the fourth-last paragraph of the first page of your comments today. You point out that a significant amount of the work of your advisors is taken up reviewing the complex aspects of some of the situations that come before you where, as you say, “the application of the Code is not immediately apparent”.

I think that raises the question, in my mind at least...and I know we'll never be able to have a code that is so iron-clad that it will cover every single possible eventuality. I understand that. But does this reflect possibly the need on the part of this committee to schedule a periodic automatic review mechanism to address some of the things that possibly could be lumped together in a code, which would free up some of the advisors' time from going into all of the individual possible scenarios? Perhaps once every two years or so we'd have an automatic review and you would bring those to us.

How would you respond to that?

[Mary Dawson]

That would be one possibility.

This committee was very open last year to dealing with problems as they came up. We dealt with the gift issues, for example. They were quite a problem.

If you put a limit on there of every two years, it might not be frequent enough, in some cases. On the other hand, you have a mandatory five-year review as well, I believe, which has to happen whether or not we've had the little ones in between. So I'm not sure you'd be gaining by having a mandatory two-year review .

The other comment to make is that it's not that the provisions maybe are faulty. It's that each individual situation is different. Sometimes it's not clear just how that provision would apply to the particular situation. That's where the difficulty in interpreting comes.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Just to follow up, then, there's no commonality in those that would allow us to begin to lump some of them together and try to create a catch-all to address those issues.

[Mary Dawson]

There may be. The gifts are perfect examples. My sense was that people did not understand how draconian those rules were before you changed them, so that was a perfect example of where the problems did emerge. I'm quite prepared to raise those as we see a commonality. In fact, where I go out of my way to raise them is in my annual report.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Okay, thank you.

If I could just change gears, on page 9 of your annual report, in the second last paragraph, you refer to outside activities, and you refer to public office holders here, of course--for example, calling on people who are practising a profession to disengage--and then you point out at the end that sometimes these outside activities are more difficult to discontinue than others. Could you give us a snapshot as to how long or what kinds of activities you're referring to there?

[Mary Dawson]

That would be participating in a business or being a director of a company or...there's a whole range. It could be as a volunteer in some philanthropic activity. It's anything that you're doing outside of being an MP.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

You said you have not set a specific deadline. But is there a guideline you would follow in terms of asking professional people to withdraw from those activities if they're public office holders?