Procedure and House Affairs Committee on Oct. 17th, 2017

[Dr. Leslie Seidle]

I'll mention just two. Very briefly, two countries have a lot of influence on Canadian political culture.

The U.S. has essentially no spending limits at all on anything. The only spending limit that applies is when a presidential candidate agrees to accept public funding. Increasingly, over the latest campaigns, they've declined; even the Democratic candidates have declined. With the Supreme Court's decision on Citizens United about five or six years ago, the limits on contributions are even weaker than they used to be as are the limits on the reporting by what are called political action committees.

The U.S. is in no way—in no way—a valid point of reference for Canada in this area. Call me undecided.

In the U.K., only since 2000 have there been limits on party spending. Candidates were limited in 1883. But there are no contribution limits, so there are still regular donations—and I'm not making this up—of as much as one million pounds to political parties, including to the Labour Party. It's interesting that often some of these donors magically find themselves sitting on the cross-bench of the House of Lords or sometimes on the party benches of the House of Lords.

Historically, Britain has been somewhat of a reference point because, when the Barbeau committee was looking at spending limits in the 1960s, it could look to Britain where there were candidate limits and agency—the official agent concept was started in the U.K. in 1883. Britain has evolved, but there are still areas where the equity that's meant to be in a political finance regime is not present.

[David Graham, Liberal, Laurentides—Labelle, QC]

You also talked a bit about which parties are affected. Any opposition party that's already in the House is affected. Do you find that appropriate, or do you believe newer parties should be affected, or should fewer parties be affected? Should anybody besides the leader and leadership candidates be affected in opposition parties, in your view?

Either of you can answer that.

[Dr. Leslie Seidle]

I don't have any difficulty with the list of those who are within the umbrella in the statute as it now stands. It seems to me that the criterion of representation in the House is a reasonable one. It could have been another one. It could have been any registered party, but the drafters decided to move it up a notch, and not cover all the parties that are on the registry at Elections Canada.

[Eric Montigny]

I would add that compensation mechanisms are needed to take into account the specific reality of each party, depending on its resources, in order to meet the obligations prescribed by law.

[David Graham, Liberal, Laurentides—Labelle, QC]

Can I give the last few moments of my time to Ms. Tassi, if I have any?

[The Vice-Chair, Conservative, Scott Reid]

Sure. You have about a minute and a quarter.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

Thank you.

Mr. Montigny, when you first started with your comments, you made the point that contributing to a political party is a democratic right. You know that previously we had the testimony of the co-founder of Democracy Watch, and that that has come up with respect to the hundred-dollar limit.

Can you expand on the importance of exercising this democratic right and why you feel that making a contribution is a democratic right?

[Eric Montigny]

There are many ways to contribute to public life. We can do this by offering our time, volunteering, becoming a candidate or being elected. We can also contribute by making a donation. It's a way of expressing a political position within a democracy. I would say that political parties also have a connection with their activists who are contributors.

Who is a political party accountable to? The electorate, obviously, if elected, but it is accountable, first and foremost, to its members and the laws governing it. When members don't provide the political financing, or provide less of it, it's as if the power we give to members, activists, is much less present in the distribution of a political party's internal power.

I would say that it is part of the anchoring of a political party in society. I'm not talking about large donations; I'm talking about commitment, in different forms, of activists in a healthy party life. If we cut this link or make it more difficult, I'm afraid that some political parties will no longer be representatives of civil society in government or parliamentary institutions, but will be more like representatives of the government in civil society. So I think there is a major link between them.

At the individual level, contributing to a political party and expressing one's opinion financially is a democratic right; it's not just about giving time or volunteering.

[Filomena Tassi, Liberal, Hamilton West—Ancaster—Dundas, ON]

And are you satisfied with the limits that we have, in terms of the $1,550? Do you think that limit is an appropriate limit?

[Eric Montigny]

I'm going to come back to the question I raised earlier.

The contribution limit in Quebec is $100; it's very low. The question we have to ask ourselves to find a fair balance is this: how does the limit respect a principle of fairness in our electoral laws with regard to voter primacy? Can average citizens in a riding easily attend a fundraising event when the cost is $1,500, despite the fact that they can get refunds or tax credits?

The question answers itself: a threshold of $1,500 is still high.

[The Vice-Chair, Conservative, Scott Reid]

Professor Seidle.

[Dr. Leslie Seidle]

I would make just a quick comment on this debate about $100 versus $1,550, which I think it is at the moment. The fact that there's a ceiling doesn't mean that anyone who wants to contribute to a political party has to get near that ceiling. They can give $100 or $200. The tax credit at the lower levels is so generous that giving a $400 or $500 contribution is actually quite feasible for people who are middle class. Lots of people do it.

I don't agree with Duff Conacher, who says that you should put the limits down to $100. Political parties need money. Candidates need money. Perhaps the upper limit is too high but, and I repeat, it doesn't force anybody to dig into their bank account to contribute at that level.

This is just a final word on Duff Conacher's testimony. He mentioned at a couple of points that he finds the current regime—he wasn't referring only to the $100 contribution limit—unethical and undemocratic. I don't feel that he demonstrated that in his presentation. I know he likes to make strong statements, and he has done a lot of good work to promote the development of our democracy. But when you make statements like that, you should be able to prove them. I don't believe that the proof is there.

We have a very healthy political finance regime. People come from all over the world to meet with Elections Canada, to learn about it. People read about it, and so on. It is cited, just as our Charter of Rights is cited, and our immigration system is often cited. I go abroad a lot and attend a lot of conferences.

We can always improve. That's what you're doing here today. I think we should also be fair about what we have achieved in this area and not say that it is unethical and undemocratic. That's going way too far.

[Eric Montigny]

I want to add something very quickly about what was just said.

Indeed, the tax credit can help to reimburse the expense, but the very spirit and very reason why we were invited to appear is to discuss access in exchange for contributions. When the price of access to an event is set at the limit of contributions, or near the limit of contributions, that's when it becomes difficult for people to access politicians who are featured during a fundraising event.

[The Vice-Chair, Conservative, Scott Reid]

Thank you. Professor Montigny, you had the last word.

We're going to suspend momentarily so we can have the next witnesses take the stand.

Thank you to both of our witnesses very much.

I will now cede the chair to our chairman.

We'll just suspend for a moment.

[The Chair, Liberal, Larry Bagnell]

Just before we go to the witnesses, I want to remind the committee members that we have an extra-long meeting today with an extra half-hour for witnesses at one o'clock for the Elections Ontario person. If people could try to get their amendments in by five o'clock today, then they can be distributed to committee members for Thursday's clause-by-clause.

Welcome back to the 73rd meeting of the Standing Committee on Procedure and House Affairs. We are studying Bill C-50, an act to amend the Canada Elections Act (political financing). We are pleased to have with us Mary Dawson, Conflict of Interest and Ethics Commissioner. She is accompanied by Martine Richard, general counsel. We are also joined by Karen Shepherd, the Commissioner of Lobbying. She is accompanied by Bruce Bergen, senior counsel.

As I say to all the witnesses, you are here and prepared for Bill C-50. If someone asks you a question about something else, it's up to you whether you answer. You don't have to answer that.

First of all, we have opening statements.

Ms. Dawson, you have the floor for any opening statement you would like to make.

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

Mr. Chair and committee members, thank you for inviting me to appear before you today as part of the committee's study on Bill C-50, An Act to amend the Canada Elections Act (political financing). With me today is Martine Richard, general counsel.

Bill C-50 amends the Canada Elections Act to create an advertising and reporting regime for political fundraising events attended by ministers, party leaders, or leadership contestants where the cost to participate is more than $200. The aim is to increase transparency about who is attending such events. I support the direction of this proposed legislation. As I've said on previous occasions, transparency is important for any kind of regime that touches on conflict of interest.

Bill C-50 does not amend or directly affect the regimes that I administer: the Conflict of Interest Act and the Conflict of Interest Code for Members of the House of Commons. It does, however, apply to some individuals who are subject to those regimes.

Ministers, including the Prime Minister, are reporting public office holders under the Conflict of Interest Act. Leadership contestants and party leaders who are sitting MPs would also be subject to one or both of these conflict-of-interest regimes. I welcome the move to make all party leaders and leadership contestants—and not just ministers—subject to the new advertising and reporting regime. I note, however, that Bill C-50 does not cover parliamentary secretaries, who are subject to the Conflict of Interest Act, as reporting public office holders. The committee may wish to consider that omission.

It appears that the impetus for Bill C-50 was the high level of media attention and public concern about several so-called cash-for-access or pay-to-play fundraisers that have taken place in the last two years. These are events in which a relatively small number of attendees, in return for the price of admission, gain the opportunity to meet a featured minister or party leader. The fundraisers prompted a great many calls to my office and several requests for investigations. The level of public interest in fundraisers involving federal politicians is particularly high at present; however, concerns about political fundraisers were also raised much earlier during my mandate as commissioner. The issue of political fundraising came up in three of my examination reports under the act: The Raitt Report in May 2010, The Dykstra Report in September 2010, and The Glover Report in November 2014. I also addressed the matter in my submission to the parliamentary committee that conducted the five-year review of the act which concluded in 2014.

The Conflict of Interest Act contains only one provision, section 16, that directly addresses participation in fundraising activities. Section 16 of the act reads: “No public office holder shall personally solicit funds from any person or organization if it would place the public office holder in a conflict of interest.” There's no specific mention of political fundraising in the Conflict of Interest Code for Members of the House of Commons.

This provision does not distinguish between political and charitable fundraising. Two elements must exist to establish a contravention of section 16: first, a public office holder must have personally solicited funds from a person or organization or have asked somebody else to do so; and second, it must be established that the personal solicitation would place the public office holder in a conflict of interest.

I should mention as well that one other paragraph of the act relates to political fundraising, and that's paragraph 11(2)(a), which establishes an exception to the gift rule to allow for gifts that are permitted under the Canada Elections Act. As you will recall, the gift rule prohibits public office holders and their family members from accepting a gift or other advantage that might reasonably to be seen to have been given to influence the public office holders in the exercise of a public power, duty, or function.

Other sections of the act, while not specifically about fundraising, could be triggered, but this could occur only at a later date, when a person who made a donation to attend a fundraiser seeks a particular outcome from a minister or a member of ministerial staff.

This would not arise when the fundraiser takes place or when the stakeholder makes the required donation. For example, section 6 prohibits public office holders from making an official decision or participating in making a decision if they know or should reasonably know that, in doing so, they would be in a conflict of interest.

Under section 7, the issue is not who a public office holder may speak with at a fundraising event, but whether that person is given preferential treatment after the fact. Section 7 is problematic, however, because it's so limited in scope. It does not prohibit all preferential treatment, only preferential treatment based on the identity of the person who makes the intervention. I have always wondered why it couldn't just be preferential treatment.

Sections 8 and 9 prohibit public office holders from using insider information to improperly further or seek to improperly further a donor's private interests, and from seeking to influence a decision in order to do that.

On several occasions I have recommended strengthening the fundraising provision of the act, for example, by putting in place a more stringent rule for ministers and parliamentary secretaries. I even went so far as to say in my 2012-2013 annual report that I could support an absolute prohibition on ministers and parliamentary secretaries attending fundraising events, if the government wanted to go that far.

In The Glover Report, I recommended amending the act to include a contravention for ministers or parliamentary secretaries who knew or should have known that funds were being solicited by their staff in circumstances that would place them in a conflict of interest and who failed to take appropriate action. I've also referred on several occasions to the Prime Minister's accountability document, which has since been updated and renamed Open and Accountable Government. Some of its provisions could be added to the act.

I have suggested as well that the House of Commons consider implementing a separate code of conduct to address the political conduct of members and their staff, including political fundraising.

As amendments to the regimes that I administer are not the issue currently before the committee, I mention these recommendations only as a context and to establish my long-standing general position that fundraising rules should be tightened.

The amendments to the Canada Elections Act proposed by Bill C-50 promote transparency with respect to fundraising activities.

I think it is a positive measure that would benefit our electoral process. It will also help to apply the Conflict of Interest Act more effectively. The easier access to the names and addresses of participants in these fundraising activities could be useful to the office if it has to investigate an allegation that a participant in such an activity obtained an advantage from a minister.

That ends my opening remarks. I will be pleased to answer your questions.

[The Chair, Liberal, Larry Bagnell]

Thank you, Ms. Dawson.

Ms. Shepherd, the floor is yours.

[Karen Shepherd, Commissioner of Lobbying, Office of the Commissioner of Lobbying]

Good afternoon, Mr. Chair and members of the committee.

I am pleased to be here today to participate in your study of Bill C-50, An Act to amend the Canada Elections Act (political financing).

I am accompanied by Bruce Bergen, senior counsel.

As Commissioner of Lobbying, my role is to administer the Lobbying Act, which makes lobbying activities transparent, and to develop and enforce the Lobbyists' Code of Conduct, which sets out standards of behaviour for lobbyists. Together, the act and the code ensure that Canadians have confidence in the integrity of decisions taken by their government.

Lobbying is a legitimate activity.

Having been involved in the making of public policy for many years, I know that exposure to a range of viewpoints is essential to effective policy-making and better decision-making by governments. However, it is important that when lobbyists communicate with public office holders, they do so transparently and with high ethical standards.

My mandate, as outlined in the act, is threefold: maintain the Registry of Lobbyists, which contains and makes public the information disclosed by lobbyists; develop and implement educational programs to foster public awareness of the requirements of the Lobbying Act and the Lobbyists' Code of Conduct; and ensure compliance with the act and the code.

The Lobbyists' Code of Conduct complements the Lobbying Act in enhancing public confidence in government decision-making.

Following a two-year consultation process, a new Lobbyists' Code of Conduct came into force in December 2015. The new code addresses the issue of conflict of interest in more detail to reflect a 2009 Federal Court of Appeal decision that included the concept of apparent conflicts of interest. These new and simplified rules help lobbyists avoid placing public office holders in a real or apparent conflict of interest, specifically when they share close relationships with public office holders whom they have engaged in political activities, and when it comes to the provision of gifts to public office holders.

Given the committee's current study, I would like to discuss rule 9 of the code that deals with political activities.

Some political activities could create a sense of obligation. While we live in a democratic country where both political activities and lobbying are legitimate, lobbyists must ensure that no real or apparent conflict of interest is created when these two activities intersect.

The code explicitly prohibits lobbyists from lobbying members of Parliament and ministers when they have carried out political activities that could reasonably be seen to create a sense of obligation. These activities include organizing a fundraising campaign or event, writing speeches, preparing candidates for debates, and serving on the executive of an electoral district association. The rule extends to a prohibition on lobbying public office holders who work in a minister's or MP's office. By contrast, political activities such as making contributions under the Canada Elections Act, putting a sign on a lawn, being a member of an electoral district association, or attending fundraising events do not create the sense of obligation that would result in the appearance of a conflict of interest.

When the code was published, I released guidance to help lobbyists understand how I intend to apply the rules relating to conflict of interest. My guidance encourages lobbyists to ask themselves the following question when considering political activities: would a reasonable person look at my political activities and consider that they created a sense of obligation on the part of any individual seeking or holding a public office? If the answer is “yes”', then any related lobbying activities risk creating a conflict of interest for that individual and should not be undertaken.

In summary, while I do not regulate political activities, I believe that legislation such as the Lobbying Act, the Canada Elections Act, the Conflict of Interest Act, and the codes which exist for lobbyists and members of Parliament contribute to the confidence Canadians can have in the integrity of the government's decisions.

Mr. Chair, this concludes my remarks. I am now pleased to answer any questions you or the committee members may have.

[The Chair, Liberal, Larry Bagnell]

Thank you very much.

We will go to Mr. Di Iorio.

Mr. Di Iorio, you have the floor for seven minutes.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

Thank you, Mr. Chair.

My question is for Ms. Dawson.

Ms. Dawson, as commissioner, do you make decisions when complaints are made to you?

[Mary Dawson]

Pardon? I didn't understand the question.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

As commissioner, when a complaint is made to your office, you make a decision. Is that correct?

[Mary Dawson]

I will respond to complaints if they are valid. So I respond to the person who made the complaint. If I believe there is a real problem, I conduct an investigation.

[Nicola Di Iorio, Liberal, Saint-Léonard—Saint-Michel, QC]

I will ask my questions in English for the sake of brevity.

[Mary Dawson]

Okay.