Procedure and House Affairs Committee on Feb. 18th, 2016

[The Chair, Liberal, Larry Bagnell]

Welcome, everyone.

Good morning. This is meeting number 8 of the Standing Committee on Procedure and House Affairs for the first session of the 42nd Parliament. This meeting is being held in public. Today we're going to have a briefing from the Conflict of Interest and Ethics Commissioner, Mary Dawson.

Mary, you must be very popular, I haven't seen this room so full in a long while. I know Kady O'Malley is very excited that you're here. She'll have lots to tweet.

With Mary is Martine Richard, general counsel and acting director of investigations; Lyne Robinson-Dalpé, director of advisory and compliance; and Marie Danielle Vachon, director of policy, research, and communication.

Seeing as there is so much interest in the room, basically this committee is responsible for a mandatory five-year review of the conflict of interest code. We just did that a year ago, but we didn't do everything. We just picked the low-hanging fruit, so there may be other things that we may want to do. We're going to have that discussion next Tuesday after we hear this presentation. Next Tuesday we will discuss what the committee wants to do on this topic or amendments we want to make, if anything.

I would ask the committee members, before I forget, to come prepared to rubber-stamp the three forms that are already in place that we talked about before. Make sure you take a look at them so we don't have to have a long discussion because they're already being used and approved by Parliament, and we don't want to change our procedure of approving such forms.

With that, unless any of the committee members want to do anything else, you are all very welcome. Thank you for coming on short notice. We seem to ask everyone on short notice while we're getting organized. We appreciate your bringing your technical staff who will be able to answer some questions. The committee is always very creative in its questions, so it is great that we have a whole team here. You're on, and we'll be flexible with your presentation time because I know you have a lot of things that you could tell us.

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

Thank you very much.

Mr. Chair and honourable members of the committee, I am pleased to have this opportunity to appear before you, and I thank you for inviting me.

I was going to introduce my team here, but you've introduced them already. I'll mention that these are my senior management team members, and I'll mention the one who's not here today because she's just left on holidays, Denise Benoit, who's the head of corporate.

I will briefly explain my role and mandate as Conflict of Interest and Ethics Commissioner, review my past interactions with the committee, and outline my hopes and expectations for a productive relationship going forward.

As Conflict of Interest and Ethics Commissioner, I administer two conflict of interest regimes: the Conflict of Interest Code for Members of the House of Commons and the Conflict of Interest Act for public office holders. These two regimes seek to prevent conflicts from arising between the public duties of elected and appointed officials, and private interests.

The members' code and the act have similar but not identical provisions. This can be confusing, particularly in the case of members who are also ministers or parliamentary secretaries, and therefore subject to both regimes. I've recommended that Parliament consider ways in which the members' code and the act might be harmonized where possible in order to ensure consistency of language and processes.

The members' code is part of the Standing Orders of the House of Commons, the permanent written rules under which the House regulates its proceedings. It includes rules on avoiding conflict of interest, processes for the confidential disclosure of information to the commissioner, procedures for making members' summary information and other statements public, an advisory role for the commissioner, and a process for investigating alleged contraventions of the rules by members.

My staff and I review confidential reports of assets, liabilities, and activities. We maintain a public registry of publicly declarable information and investigate and report on cases of alleged non-compliance. You're in the process or have finished that first phase of your initial reporting. Our primary goal is prevention, by assisting members and public office holders to comply with the conflict of interest regimes.

An explicit educational role for the commissioner is set out in section 32 of the members' code. My staff and I undertake a number of outreach activities to inform and educate members about their obligations under the members' code and how to comply. We maintain regular contact with members and provide confidential advice on specific matters. We review with them each year their confidential disclosures and public declarations. We make formal presentations to party caucuses, and we prepare written material, such as backgrounders, fact sheets, and advisory options.

In enforcing the members' code I'm empowered to conduct formal investigations called “inquiries”. In my inquiry reports I can recommend sanctions, but it's up to the House of Commons to decide if any measures should be taken against a member for failure to comply with the members' code. Those reports are made public without any approvals by Parliament or the government.

The members' code has been amended a number of times since it was adopted by the House of Commons in April 2004. In 2007 an interpretation section was added, the reporting deadline for gifts was extended to 60 days, and there were several changes to the disclosure statement provisions. In 2008 an exemption was introduced as a result of an inquiry report of mine so that members would not be considered to be furthering their own private interests or those of another person if the matter in question consisted of being a party to any legal action relating to actions of the member as an MP. That was the issue of libel chill that some of you might remember. In 2009 the gift rules were amended in consultation with this committee and myself.

Most recently, in 2015, the code was amended in several areas. Among the changes the disclosure threshold for gifts was lowered from $500 to $200, consistent with the threshold for public office holders, the threshold for reporting sponsored travel costs paid by third parties was also set at $200, and deadlines were introduced for members to sign their disclosure summary and complete the annual review process. All of these changes related to recommendations I had made during the last five-year review.

Section 33 of the members' code requires the committee to conduct a comprehensive review of its provisions and operation every five years. The amendments made to the members' code in 2007 resulted from the first of the five-year reviews.

The second review was launched in 2012 and I provided the committee with a written submission and appeared before it to discuss my recommendations in May of that year. The committee suspended its study soon afterwards and began a new review almost three years later, in February 2015. I provided a new written submission at the committee's request and again appeared before it.

In June of 2015, the committee presented a report to the House of Commons concluding that review. The House concurred in the report later that month, and the committee's recommended amendments came into effect on October 20, the day after the federal election. They reflect, in whole or in part, 10 of the recommendations that I made to the committee, and I was delighted to see this. I note that the code is generally working quite well, but I also note that I made 13 other recommendations and would be pleased to discuss them should the committee choose to proceed with a comprehensive review of the members' code, which was expressly recommended in the June report.

The House also concurred in a new form entitled, “Request for an Inquiry”, which I had submitted to the committee for approval in 2010. I had to do that because section 30 of the members' code requires that I obtain the committee's approval for all forms and guidelines, and I felt it was very important that we have a form for members to request an inquiry.

Generally, the approval requirement has hampered my efforts to help members comply with their obligations. I cannot issue any guidelines or forms under the members' code. A notable example is guidelines in relation to gifts, an area that appears to cause a lot of confusion and prompts many questions from members.

In contrast, no approval of guidelines or forms is required under the Conflict of Interest Act for public office holders. I have issued several guidelines under the act, quite a number, actually, and public office holders have told me they appreciate having these tools. I have raised this concern with the committee in the past and asked it to consider whether there is really a need for the committee to approve any guidelines and forms that I may develop under the members' code.

In the meantime, when the members' code was amended by the House of Commons last June, a number of consequential and editorial changes were required to reflect the amended language of the code in the existing forms. Normally, I would have sought the committee's approval of the revised forms, but there was no time. The House rose very soon after the amendments were made, and then Parliament was dissolved in early August for the election.

The committee is mandated under the Standing Orders of the House of Commons to review and report on all matters relating to the members' code, and it has sought my input in recommending amendments to the House of Commons. I have appeared before the committee since becoming commissioner, although not very often. In the early years of my mandate I was invited to discuss with the committee two of my annual reports, but I have not been given the opportunity to do so since 2010. The only other occasions on which I was invited to interact with the committee was in the context of the five-year review of the members' code initiated in 2012, and I appeared a second time in 2015.

I look forward to a productive working relationship with the committee. I must say I am encouraged by the fact that the committee wished to meet with me so early in the new Parliament, even if it was on short notice.

Mr. Chair, in closing, I wish to assure the committee that I and my office are available to provide any information that it may require about any matters related to the Conflict of Interest Code for Members of the House of Commons.

I thank the committee again for inviting me to appear before you today. I will now be happy to answer any questions you may have.

[The Chair, Liberal, Larry Bagnell]

Thank you.

Just before we go to questions, you mentioned that when we recently adopted 11 of your recommendations, there were 13 we didn't. Right?

[Mary Dawson]

Ten, it was 10 and 13.

[The Chair, Liberal, Larry Bagnell]

Thirteen that we didn't...?

[Mary Dawson]

Yes.

[The Chair, Liberal, Larry Bagnell]

Would it be possible, before our Tuesday meeting, for you to send us those 13 recommendations in a priority list of what you think is most important?

[Mary Dawson]

Okay.

[The Chair, Liberal, Larry Bagnell]

That's just in case we address that, because that's what we're going to discuss on Tuesday.

[Mary Dawson]

I would be pleased to do that.

[The Chair, Liberal, Larry Bagnell]

Thank you.

Who's going first? Mr. Graham.

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

Thank you, Ms. Dawson. I first wanted to say that my adviser is Karine McNeely from your office. She has been fantastic. I wanted to shout out to her. It's been great. When I send a question, I get a quick and clear answer. It's been helpful to have that guidance as I try to figure out what on earth my responsibilities are.

[Mary Dawson]

Thank you. We do encourage people to call.

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

We do and I've had my staff call when I've had questions, such as, “I don't know if I should do this. Ask Karen. She'll figure it out.” It's appreciated.

In your view, what obligations or processes under the code are the most complicated or potentially misunderstood by members?

[Mary Dawson]

It's gifts, constantly gifts. It is such a problematic area.

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

That's fair.

[Mary Dawson]

For others, none spring to mind as being problematic like that. It's overwhelmingly at the forefront of problems and that's the one that springs to my mind.

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

What kinds of problems have you had with non-compliance and what kinds of enforcement actions have been taken in the past?

[Mary Dawson]

I have no idea the extent to which gifts are being reported to me, so all I can use as my guidelines are the ones that are reported.

I issued a report under the act about a year ago. That brought many more questions to the fore. That report had to do with someone who left office and went and worked with.... It was the Bonner report. It was about taking a post-employment position with someone who had been a lobbyist. It drew attention to our rules. Where questions arose were with respect to receptions and the whole question of gifts.

I've always that said if you receive a dinner, that is a gift. Of course, if you receive a bouquet of flowers, that's a gift. Everything's a gift. Then the question becomes, is it acceptable? There is a lot of confusion between acceptability and reportability to begin with. A lot of people align the two and think if it's not reportable, it's acceptable. That message seems to get lost constantly.

I'm pleased to see the reporting threshold has come down to $200, because now we'll see the ones between $200 and $500.

I put forward a number of possibilities over the years as to how we could handle this. Just to give you a bit of history, when you guys made those amendments in 2010 or 2011 the rules were different. The rules said if you were given a gift that had anything to do with your job then you had to refuse it. Those rules were being totally ignored. It was like they didn't exist, and I was troubled by the hypocrisy of it all. I said we should at least look at putting out some realistic rule on gifts that people could then accept and not ignore. What happened was that we took the same rule that was in the act for the public officer holders and mirrored it in the code. It's much easier to receive a gift as a member than it is to receive a gift as a minister because there are a lot more potential conflict situations.

I'm giving you a diatribe on gifts. I hope this is okay.

One area where you can't receive gifts is if you are sitting on a committee voting on a particular matter and the person who is the stakeholder takes you to a big, fancy dinner or gives you tickets to something.

I'm just explaining the gifts, but the area that gets the most attention by people complaining about the gift rules are these receptions that seem to take place on the Hill.

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

As I understand it, if I accept that piece of sushi then they can't lobby me, so it's immunity, right?

[Mary Dawson]

If you accept—

[Voices]

Oh, oh!

[Mary Dawson]

Well, I suppose you could look at it that way, except I wouldn't go so far as a little shrimp or something. I've been before committees where they said, “How many shrimp will it take to make an offence?”

I said, “Look, you are being silly.” I've said that a normal courtesy cup of coffee is okay, unless it is drilled into the person every day.

You have to look at this with a little bit of common sense. It took me a couple of years to find out there were all these receptions on the Hill because nobody ever reports them. Generally speaking, for members, they are probably okay because if you're walking by and getting a glass of wine or something I'm not going to complain about that. But what I do have problems with is a significant spread being put out targeting the people who are the problem. I know there have been a number of misapprehensions about exactly what we're saying in my office. It gets a little complicated because the Office of the Commissioner of Lobbying is putting out guidelines that interface to some extent with my rules.

I may as well beat my horse here. There is a problem between the Lobbying Act, the members' code, and the act, in that the same terminology is used to mean something different. In my act, a public office holder is a minister, a parliamentary secretary, a Governor in Council appointee, or ministerial staff. In the Lobbying Act, the term “public office holder” is used to mean a whole bunch more people, including members. When statements are being made under the Lobbying Act or under my act, they are talking about different people.

Anyway, that's one of my hobby horses.

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

I appreciate that.

I think I am well past my time, so thanks for that.

[Mary Dawson]

Sorry, I went on.