Procedure and House Affairs Committee on Feb. 10th, 2011

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

What happens in the case, generally speaking, if a lobbyist were to receive a piece of confidential information from either a public office holder or one who is not a public office holder, but it was a government document? Are they required or obligated under the act to report such a transaction?

[Karen Shepherd]

As I indicated, while I appreciate the attempt to generalize, this is the first time this issue has come up since I've been with the office and its predecessor. That is one of the points in looking at the code that I will be addressing, and when I am issuing something on this, it will be one of the points that I will bring out at that point.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

So is it fair to say, then—

[Karen Shepherd]

I'm looking at it.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I understand that it's the first time and I appreciate that. I'm just wondering, currently under the code of conduct, are you saying that this is ambiguous, that it's really not defined within the code of conduct and you're going to be making a determination? In other words, you will be setting a precedent...?

[Karen Shepherd]

Because there has not been anything on this particular issue before, I believe so, yes.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

All right.

Let me ask you this, and correct me if I'm—

Oh, I'm sorry, Mr. Bergen. Did you have...?

[Bruce Bergen, Senior Counsel, Office of the Commissioner of Lobbying]

Setting aside the code of conduct, there is a question, I guess, about whether something is a registrable activity. Merely receiving a document would not necessarily be a registrable activity because there is no communication by the lobbyist. That's if we look at the act, right? So....

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Well, again, let's have another hypothetical. When you say there is no contact from the lobbyist, that they just received a confidential document, what would happen in the case of a lobbyist who actually acknowledged receipt of the document?

[Bruce Bergen]

That doesn't seem very hypothetical.

[Voices]

Oh, oh!

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Well, I'm trying to.... I mean, we're examining a question of breach of privilege here, and I know that you're constrained because an investigation is ongoing. We're trying to get a sense of which actions on behalf of of both the lobbyist we questioned before and Mr. Ullyatt, quite frankly, have maybe contravened the code of conduct.

So I'm just asking you again, hypothetically or in general terms, if a lobbyist received a piece of confidential information without asking for it--they just received it--but then they responded to the sender acknowledging that they had received it, would that be in conflict with the code?

[Bruce Bergen]

Would you like to address that, Commissioner?

[Karen Shepherd]

As I've said, and the difficulty, I guess.... I'm trying to be forthright with the committee as much as I can be--

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I understand.

[Karen Shepherd]

--but I'm also trying not to prejudge where I may come out on this case. I can't say.... Unlike the conflict of interest rule, for example, for which there have not only been a number of complaints filed over the years, but for which there's actually case law now, since 2009, there hasn't been anything here.

So prejudging where I may see this in terms of either a principle or a rule is one of the things I'm trying to determine in terms of the actual facts of the case. The allegations you're bringing up, or that the committee is bringing up and looking at, I think are serious enough that without hesitation I opened an administrative review, because I thought I needed to look at this particular issue.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I have two other quick questions.

How much time do I have left, Mr. Chair?

[The Chair, Conservative, Joe Preston]

You have 40 or 45 seconds.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Mr. Ullyatt was a member of a backbench MP's staff, so he was not designated as a...not considered, at least, to be a public office holder.

[Bruce Bergen]

A designated--

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Not a designated public office holder.

[Bruce Bergen]

Right.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Does that have any impact on whether the lobbyist should register any contact with Mr. Ullyatt? He's not a designated public office holder, so if lobbyists have contact with someone like Mr. Ullyatt, do they have to register that? Do they have to notify your office that they're having that communication?

[Karen Shepherd]

If Mr. Ullyatt were a public office holder, as Mr. Bergen was indicating earlier, it might require an initial registration, depending on the subject matter of the discussion. But there would not be a monthly communication report, because in the position he was in with--

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Yes. What I'm trying to get at here is that we have a situation where--