Procedure and House Affairs Committee on Feb. 19th, 2015

[The Chair, Conservative, Joe Preston]

I'll call us to order.

We can go ahead and get started. I apologize for the delay.

Madam Dawson, it's great to have you here today. We'll attempt to spend as much time with you as we possibly can. I know you have an opening statement, and I'd love for you to go ahead. Take your time, and we'll ask questions of you afterwards.

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

Terrific.

First of all, I should introduce my colleagues here. I have Sherry Perreault on my left. She's policy and communications. I have Lyne Robinson-Dalpé on my immediate right, and she looks after compliance and advisory. And on my far right is Martine Richard, who is general counsel and looks after investigations.

So, I will start.

Mr. Chair, I would like to thank the committee for giving me this opportunity to contribute to its review of the Conflict of Interest Code for Members of the House of Commons.

My experience in administering the code since 2007 has enabled me to identify a number of areas for improvement. These are discussed in the written submission that I have provided to the committee and address a range of subjects, including rules of conduct, administering the code and managing investigations. I have also included, in relation to inquiries and administering the code, some draft language.

I do not have time in my opening remarks to touch on all my recommendations. Instead, I will focus on those that relate to three key areas, namely gifts and sponsored travel, administering the code, and inquiries.

I've found that the code's gift provisions are still not clearly understood despite my ongoing efforts to educate members about them, and that gifts and other benefits are not consistently reported. Many members mistakenly believe that gifts and other benefits valued at less than $500 are automatically acceptable. In fact, all gifts, regardless of value, are subject to the code's acceptability test, which prohibits members from accepting any gift that could reasonably be seen to have been given to influence them. I've concluded that the best way to remedy these issues would be to require members to disclose and publicly declare a great many more gifts. I therefore recommend significantly lowering the threshold for public declaration from its current level of $500. A lower threshold would result in more frequent reporting of gifts and other benefits. This would help ensure transparency about what gifts members received and from whom. It would also result in more communication between members and my office, so my staff and I can better assist them in ensuring that the gifts they are offered meet the code's acceptability test.

Invitations to meetings, receptions, and information sessions at which meals or refreshments are offered can be a particular challenge in ensuring compliance with the code's gift rules. Members may not consider them to be gifts, or may believe they constitute customary hospitality and are thus exempted from the acceptability test. I've always applied the gift rules to such invitations. I believe, however, that they are a special category of gift and that this should be reflected in the code. I recommend that the code explicitly exclude from the gift rules attendance at any reception or event to which all members—and that has to be all members—are invited. Invitations to individual members, committees or caucuses would not fall within this exception, nor would any gifts other than the modest meals or refreshments received at the events that I was speaking of.

I also recommend that an acceptability test for sponsored travel be included in the code. As I note in my submission, it's a paradox that a gift from an organization seeking to influence a member would not be acceptable, but an expensive trip sponsored by the same organization would be permitted without any question. I've also noted some other challenges relating to sponsored travel, including ensuring that the source of third party funding for any trip is disclosed. I can go into that in more detail if you don't follow that.

I make several recommendations with respect to the administration of the code. The code does not currently impose deadlines for completing the initial compliance process or the annual review. I recommend establishing a 120-day deadline for completing the initial compliance process, and a 30-day deadline for completing the annual review process. I'm also seeking authority to issue guidelines and standard forms under the code without having to obtain the approval of the House of Commons. The approval requirement has in the past caused significant delay, and I believe it also limits the independence of my office. In this connection, I've included within my written submission a proposed inquiry request form.

To ensure that all members fulfill their reporting obligations in a timely way, I ask the committee to consider what sanctions, including public reporting, could be made available for failure to meet reporting deadlines.

Inquiries are an important means of helping ensure compliance and my inquiry reports also serve as valuable educational tools. Some of my recommendations, therefore, seek to improve my ability to manage investigations.

My recommended amendments would permit me to make public my reasons for not proceeding to an inquiry after a preliminary review when the allegation that prompted the review is in the public domain and making my reasons public is in the public interest.

They would require members who request an inquiry to refrain from commenting publicly on the matter until I've confirmed that my office has received the request and I have notified the member who's the subject of it. They would help me obtain the information I need to carry out my investigative role by giving me express power to summon witnesses and compel documents. It would also require that I'd be given direct access to any documents requested from the House of Commons.

Other recommendations include broadening the prohibition against furthering private interests to include relatives and friends, authorizing the commissioner to produce a single annual report on the administration of the Conflict of Interest Act and the code, and harmonizing the two regimes to ensure consistency of language and process.

Finally, I've also recommended that the House of Commons consider implementing a separate code of conduct that addresses both the partisan and personal conduct of members and their staff. I believe there's a need to address the ethical aspects of politicians' partisan behaviour. I also note that the House is exploring means of regulating the personal conduct of members and it may be an opportune time to consider both issues at the same time.

My recommendations are the result of a comprehensive and critical assessment of the code, based on my nearly eight years of administering it. I hope that the committee will carefully consider these amendments and, after its study, see fit to recommend that the House of Commons adopt them.

Mr. Chair, I will now be happy to answer the committee's questions.

[The Chair, Conservative, Joe Preston]

Thank you very much.

Mr. Reid, for seven minutes.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you, Mr. Chair.

Thank you, Commissioner, for being here and for putting up, as unfortunately so many of our witnesses have to do, with the fact that our proceedings get interrupted by votes. That's something that unfortunately cuts short some very fulsome testimony, and I regret that.

I wanted to concentrate on section 14 of the code. You had made some recommendations on how to deal with the code. I wanted to run another possibility by you and ask your thoughts on it.

Recently, in November of last year, you sent out a notification to members titled “Acceptability of gifts offered in conjunction with lobby days”. I'll quote from what you say there. You quote from section 14 of the code in your comments. You say:

You may be offered gifts or benefits in conjunction with lobby days. I remind you that you are prohibited under the Conflict of Interest Code for Members of the House of Commons from accepting a gift that might reasonably be seen to have been given to influence you. An acceptability test is set out in subsection 14(1) of the Members’ Code:

You then quote it.

Neither a Member nor any member of a Member’s family shall accept, directly or indirectly, any gift or other benefit, except compensation authorized by law, that might reasonably be seen to have been given to influence the Member in the exercise of a duty or function of his or her office.

Subsequent to that, you sent out a memo in December reminding people and saying that “Accepting gifts offered by people or organizations seeking to lobby you is prohibited under the Conflict of Interest Code for Members of the House of Commons. You must refuse such gifts. If you have already accepted them, you must return them immediately. Please review again the advisory opinion...”, which I just quoted.

This was in relation to some stuff that had been sent to members from the Canadian Health Food Association. They have a list of products here. I can table the list, but aside from a $10-off coupon at Kardish health stores they are all things that I can't regard as being reasonably regarded as gifts: a bunch of fish oil capsules, the October 2015 issue of Alive Publishing, some Bio-K+ probiotic capsules, etc.

By the time your memo had come to me at my office, I'd thrown all this stuff in the garbage, making it impossible to return it, thereby, I suppose, putting me in conflict with the code. But in all seriousness, I don't want to be in a situation where I have to, when I get unsolicited mail, be under a moral obligation to hunt down the person who sent it to me and send it back to them.

My question is, is there anything that would preclude you, as the code is written, in your opinion, from saying you must return it or dispose of it? Then perhaps you could have a form that we sign saying we just got rid of it. Ultimately, would that be acceptable or do we have to reword the code to allow something like that to happen?

[Mary Dawson]

No, I'm sure I could set up some kind of a system like that.

The point I was trying to make there was, it's the people who give you the gifts who should understand these rules as well, so by returning them, they get the message.

I've had a number of circumstances now. There was a charitable organization three or four years ago that gave big fancy baskets at Christmastime, and darn it all, they shouldn't. They shouldn't be spending their charitable money on that to begin with. But secondly, the gifts are sometimes worth from $50 to $100. We checked the value of those pills, for example, that whoever it was gave you, and they were over $100 in value. They're not cheap to buy in the drug stores. I'm just horrified that people would sort of waste resources that way to begin with.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

In all fairness to the members, the value if you went out and bought them might be that, but the value to someone who doesn't want them is very low.

[Mary Dawson]

And maybe we could talk about.... But then it means every member has got to—because it went to every member, I understand—write me some kind of a submission saying they threw them away.

That's okay with me. We can certainly consider that.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

But that's less onerous from a member's point of view than saving the thing while you try to figure out what the ethics commissioner is going to say about it and trying to guess what things will be considered.

[Mary Dawson]

Already the returning of it is a mechanism we put in because, in theory, if you accepted the gift without realizing it, you could be found to have contravened right on the spot. We say no, if you consult with us in good time, this is how to get rid of it.

That's a suggestion worth considering if people are interested in handling it that way.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Okay.

I have only about two minutes left.

The other thing I'm working with here is something that could reasonably be considered to have been given to influence the member. The problem here is that someone might say they can't reasonably believe that Scott Reid would change his actions based on the value of this package of pills that he's not likely to use. But you're saying that not my motive but the motive of those who sent it is the problem.

Some kind of interpretation, essentially going from a subjective description to an objective description of “here is what makes it objectively crossing the line” in terms of the motivation of the person who sent it to me would be very helpful. In the same way, we need a nice clear definition of how much an actual gift is. If it's $500, that might be the wrong number, but it is a number we can all work with. Some kind of an interpretation to that extent would be helpful.

[Mary Dawson]

I have a problem with guidelines for this committee, because I have to pass my guidelines through the committee in order to make them. I can tell you that there is a guideline that's perfectly good to consult for the act at the moment, and the rules are very similar.

I lay out all sorts of guidelines regarding how to decide. I say things like a pen that's handed out or some little thing that's not worth very much is fine. There is a whole set of rules there. I've done my best to identify some guidelines for that, but as I said, I'm prevented from establishing guidelines unless they're approved through this committee.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Reid. We'll stop there.

Mr. Angus, welcome to committee today. You're up for seven minutes.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Mr. Chair.

Thank you, Madam Dawson.

Carrying on our conversation regarding the conflict of interest guidelines that we had for public office holders, I see some carry-overs and some differences.

I'm interested in your recommendation 19:

That the Code be amended to give the Commissioner explicit power to summon any witness or compel any document necessary in the course of his or her investigative role, and that the Commissioner be given direct access to any document requested from the House of Commons.

Do you not have those powers now?

[Mary Dawson]

I have them under the act, but I don't have them under the code.

In fact, with respect to summoning witnesses, it's actually never been necessary, even under the act, for me to do that. People have always cooperated when I've asked them, and they've always given me the documents when I've asked. But I just think it should be a provision in the code as well as in the act.

With respect to direct access to any document requested from the House of Commons, I issued a report a couple of years ago in which I itemized the problem I had. In order to get the documents—the members' documents—that are in the custody of the House, I have to go through the bureaucracy in the House.

What was decided in that case was that the person who was the subject of the investigation was given the documents to give to me; in other words, they wouldn't give them directly to me, so they could withdraw any of them or do anything they wanted with them on the way to me. Of course when I'm investigating, I'm trying to get outside sources.

In that particular case, I was actually getting similar documents or the same documents from other sources, and I knew that I was receiving documents that I did not receive but that were supposed to have been found by the House. That's what I'm trying to cure there.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Okay, good. I was concerned, because it made it seem that compliance was voluntary, but I think being able to obtain documents when you need them and in an appropriate manner is a very reasonable recommendation.

I notice in recommendations 1 and 2 you identified “furthering the private interest of relatives or friends”. This seems to be a bit of a change.

I remember some of the other cases of public office holders we've dealt with. In the case of Nigel Wright and Barrick, for example, he was the godfather of Anthony Munk's son and he had been lobbied, but it was found that since it wasn't furthering his own personal financial interest, there was a gap.

Have you clarified then, for MPs, how friends and the private interests of relatives or friends are being identified? How would you define “friend”?

[Mary Dawson]

First of all that doesn't sound familiar, because this is the code I'm dealing with here, and of course Nigel Wright was under the act, so it was covered.

[Charlie Angus, NDP, Timmins—James Bay, ON]

But what I'm asking here is that when these issues have come up before, it seems to me you've taken the position that it wasn't furthering their own personal financial interests, and therefore there was no breach.

[Mary Dawson]

Only in the case of the code.

[Charlie Angus, NDP, Timmins—James Bay, ON]

In the code, but in the case of the act?

[Mary Dawson]

In the case of the act? No, no, I never took that position.

[Charlie Angus, NDP, Timmins—James Bay, ON]

So code, act.

Do you believe that, overall, people should not be able to further the financial interests of a relative or friend, that it has to be as explicit as can be?

[Mary Dawson]

Right.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I'm interested in the issue of gifts because we've talked about this with public office holders and the issue of personal interest. You don't have anything defining fundraising.

Is fundraising part of personal interest?

[Mary Dawson]

I've got a separate recommendation on fundraising. No, I wouldn't deal with it under the personal interest concept.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Right.