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

[Mary Dawson]

For one thing, the act deals with furthering the private interests of relatives and friends. The code only deals with furthering your own private interests. There are about three or four sections in there that I think should.... I mean, why the heck should you be able to further the private interests of your relatives and friends? That's not covered in the code.

On the business about the receptions, I said you might want to make a special rule about the receptions and have that as a carve-out in the gifts, if indeed they're all going on. Basically, I don't find most receptions problematic anyway, the ones that are open to everybody, but if it were stated in the code, it might comfort some people.

Applying an acceptability test to sponsored travel is a bit of a delicate one. That was a big foofaraw about five or six years ago. CBC tried to make something of it and they had a big scandal. But it sort of fizzled because members observed that if you couldn't accept those gifts, then you would never get to travel anywhere—which is pretty feeble, but on the other hand, there it is.

The fact of the matter is that a lot of money is spent by people on the outside, and there's no acceptability test at all as to whether you can accept this travel or hospitality from people. Often it's given by countries.

Concerning prohibiting personal solicitation of funds by members, in the act there's a prohibition against personally going out and soliciting funds. I think that would be a good one.

Then there are the two sets that I mentioned. One is the disclosure provisions, which just need to be cleaned up and for which I've given you drafts.

I'd like you to stop having to make me come here to get my guidelines and forms approved, especially the forms. What happened last June was that there were three forms that had to be fixed, because you changed the level of gifts from $500 to $200 for the sponsored travel and they were wrong. There was no time to get them to this committee, because they came into force as soon as the election was over, the day after.

Nobody was sitting then, so there was no way I could bring it anywhere. I thought the only thing I could do was write a letter to the clerk and say that I had done it and see what you can do about it. But those three.... If you want to, you could get rid of that particular issue to approve those forms. I don't see why I have to come here to get my forms approved, frankly, nor my guidelines, for that matter. It's very unusual that I have to. I leave that with you as another one.

Do you want me to keep going? I'm just seeing these things on my list.

Sanctions for failing to meet reporting deadlines is a tough one, because I think the legal analysis would be that only Parliament can impose penalties on MPs. I think that's probably a no go, and I more or less mentioned that.

Inquiries is the other area that, unlike disclosure, has inconsistencies—between the English and French, to begin with—and other drafting issues.

I have probably skipped some here, but....

I don't expressly have the power to summon witnesses or compel documents, and I should. I've never had anybody not give them to me when I've asked for them, but there should be that power. I ran into trouble in one investigation when I looked for documents from the House of Commons and they said I couldn't have them unless they were sent first to the member who was under investigation. When I received the documents, they weren't the same. I had happened to get some of those documents from elsewhere as well, and there had been deletions. That's a problem.

I talked about producing a single annual report to Parliament. I don't care so much about that one anymore, because I have it organized so that I can do both of them. I have two reports due at exactly the same time, one under the act and one under the code. It would be somewhat convenient to put them together, but I don't care very much about that one now.

Then there's that little kicker there of a code of conduct to address partisan and personal conduct of members. You've done a bit of work on the harassment thing now, but it is pretty damning on the behaviour of parliamentarians when some of their behaviour gets media attention. What the heck? It's not good for the reputation of the institution.

I comment on that, but those are two that probably would be outside of my domain.

That's an example. Those are most of them.

[The Chair, Liberal, Larry Bagnell]

Thank you.

Before we go to the five-minute round, maybe we'll suspend for five minutes so that anyone who wants to can get food.

Members, after the five minutes I'll throw it open to anyone in the room.

[The Vice-Chair, Conservative, Blake Richards]

We'll call the meeting back to order. I'll momentarily fill in for the chair here and allow him the chance to have a quick break.

We're now going to the next round of questioning. Mr. Reid has the floor, and I believe it's for five minutes.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

To start, Mr. Vice-Chair, I'm hoping you will use the same timing device for my five minutes that the chair used for Mr. Christopherson's eight minutes. That would be most helpful.

Let me start by saying to the commissioner that having dealt with your office, now as a member of Parliament with my own reporting for a number of years and also as a member of this committee for a decade, I appreciate your professionalism. It's always nice to deal with an office that's as professional as the one you run. It's much appreciated.

[Mary Dawson]

Thank you.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

My impression has always been and continues to be that the problems that arise deal not with the way in which you've administered the code, but rather with the way in which the code was written. I think to some degree it was written in haste when it was designed. There are some problems that have gradually been ironed out, but in particular I think they still exist vis-à-vis section 14 of the code, which deals with gifts. That's the area you mentioned that's problematic. I was going to ask if you have your copy of the code because I'm going to suggest some ideas that might be helpful in resolving some of this.

I believe there's a problem because subsection 14(1) of the code is to some degree in contradiction to subsection 14(3) of the code. Subsection 14(3) states that gifts are reportable if they have a value of $200 or more, but subsection 14(1) reads, and I'll quote:

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.

It seems to me that part—might reasonably be understood to have been given in expectation—is saying that what is important if I receive a gift is not how I'll act, but how someone assumes that the person who gave the gift to me thought I would act. It's entirely conceivable that someone would give me a gift that's under $200, which may have been intended to who knows how affect me but that is not realistically, plausibly going to have that effect.

I wonder if we could resolve part of the gift problem by adding something that says this. It would be a subsection that would go after subsection 14(3). It would have the number subsection 14(3.1) possibly, and it would say, “For greater certainly, a gift or other benefit that does not require disclosure under subsection 14(3) shall be deemed not to be capable of influencing the member in the exercise of a duty or function of his or her office.”

Would that to some degree accomplish dealing with problems with that?

[Mary Dawson]

No. That's the old conflation of the reporting with the acceptability. That wouldn't help me at all. You could put that in and that's what the law would be, but then what you would have done is established a limit of $200, under which we wouldn't be looking at the acceptability at all.

The other thing I should say is that it's not a question of whether it's in your eyes or the donor's eyes, it's in an independent third party's eyes as to whether it's reasonable.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

I'll just repeat it. It reads, “that might reasonably be seen to have been given to influence the Member”. This is the difference. That might reasonably be seen to be capable of influencing the member is a different thing.

I would argue, Commissioner, that it is implausible, given how much we're paid, that a gift under $200 could influence our behaviour.

[Mary Dawson]

That's the traditional argument, that nobody's going to buy me for $200. I get that argument all the time.

These are your laws, your rules. You can make them whatever you want. I have suggested in the past that you make it so that you don't have to report, say, under $35 or $50, or something like that? I think that's a more reasonable level than $200. That would be a bit better, from your point of view, than no gifts at all. Then you could conflate the two ideas of reportability and acceptability, which is what you're trying to do with your amendment, I think.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

I am trying to put them together. The word “conflate”, to me, is value—

[The Vice-Chair, Conservative, Blake Richards]

Mr. Reid, the time is up, but if you're going to wrap up your last question....

[Mary Dawson]

This is a very important point. It's constant, this point.

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Forgive me, I'm trying to merge the two. I'm saying that I think it is reportable, or else it is not conceivably something that should be regarded as potentially influencing our actions. I think the two should be the same and I would maintain the reason is that....

We can set the number low...$200. I argued in favour at the committee of going from $500 to $200. I always said that $500, in the eyes of the public, does seem like a level at which someone could possibly be influenced. I'm not sure that it's realistic, but it's something where I can see a reasonable person thinking that it could influence my actions.

But I repeat, it's whether someone thought they could influence my actions, and they may have been thinking that in a way that was not reasonable. The fact that a reasonable person thought that they'd thought it, in their unreasonableness—

[Mary Dawson]

You're getting to your bottom line in a much more complicated way than you need to. There's a much more direct way of getting to your bottom line than what you're suggesting. You don't need all of those subsections, you can just say that any gift under $200 is acceptable and reportable. That's not the rule at the moment. You could maybe make some kind of an argument....

I don't agree with you that when you read subsection 14(1), it's in the eyes of the donor. It's that it's reasonable to be seen that way by the man on the Clapham omnibus. Legally, it's by the reasonable man. You could add those words if you wanted, to make it clear in that direction, but—

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Would you say then, “that might reasonably be seen to have the potential to influence the member”? That is different. That talks about what a reasonable person would think, as opposed to whether the donor, who may not be reasonable in their expectations, made that assumption.

[Mary Dawson]

An easier way of doing it is—

[The Vice-Chair, Conservative, Blake Richards]

I'll let you finish and answer the question, Ms. Dawson, but then I will cut it off there. I think I've been more than reasonable. We'll then move to the next questioner.

[Mary Dawson]

You could just add the words, “it can reasonably be seen by a reasonable person to have been”, if that's where you want to go but that's not where you want to go. You want to raise the limit of acceptability. That's why I made that proposal a couple of years ago. It was just in desperation.

Why don't you conflate the two of them? I'm sorry if that's a negative word. If you put the two levels together, the reportability and acceptability, maybe you should take it down from $200 to $50, or $35 or something, which I thought was reasonable, because below that, it's just a token.

It depends on what you want to do with it, but you can't hide what you're doing with a bunch of fancy words. You can do it quite directly.

[The Vice-Chair, Conservative, Blake Richards]

Thank you. Now we'll move over to Ms. Petitpas Taylor.

[Ginette Petitpas Taylor, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Ms. Dawson. I want to echo some of the comments that your staff at the office have been tremendous. I know that our office has been calling a lot and asking a lot of questions, and they're very patient with us. Thank you for that, and please pass the message along to Karine.

I have one quick question. You talked earlier about an acceptability test for travel when it comes to countries, or being invited to travel in those countries. Could you speak to me a bit more about an acceptability test and what types of questions we should be asking? I'd like to get a bit more clarification there.

[Mary Dawson]

Yes. Say that somebody was a constant stakeholder of yours and gave you a trip to the States to some fancy resort. We had a case like that about five years ago. It was one of the caucuses. The members were offered a trip to some fancy resort for a week. That was sponsored travel. They were flown down there and given a meal. I would say that was not very acceptable. That's when I learned about caucuses. It took me a couple of years to discover that there were these caucuses doing these things. They used to call them all-party caucuses.

Quite often it's international countries. It's countries that are looking for support from Canada. The big ones are Israel and Taiwan. Just about every year you can see it in the list of sponsored travel. The question is why MPs are accepting gifts of travel from other countries. A decision has been taken and I think it's probably not going to change. MPs like to get these chances to go abroad to see these countries, so they're not going to put an acceptability test onto sponsored travel. But I'm suggesting that they think about it and that maybe they should have an acceptability test.

I've raised this before and I didn't get a very good reception. That's what I'm talking about. It just seems odd. For example, it's interesting because it's carved out that it's not a gift under the code. Where I see it is in the case of ministers and parliamentary secretaries, because it is a gift under the act. Then you get the whole question of whether it's an acceptable gift, but I can't apply that acceptability test to members under the code, because it's carved out of the gift rules.

It just works in a different way. It's rather a question of whether parliamentarians really want to give up these goodies.

[The Vice-Chair, Conservative, Blake Richards]

The member still has about two minutes.

Mr. Chan?

[Arnold Chan, Liberal, Scarborough—Agincourt, ON]

I can jump in.

I want to echo my appreciation as well, along with that of all other committee members, for the professionalism of your staff. As a member who came in through a by-election I'm obviously familiar with the basic premise, but compliance becomes a real problem, especially when you're new and are not familiar with the rules.

I want to get back into your recommendation. One thing I read in your report was that it seemed you had some frustration with respect to your ability to appear before this committee and to have your annual report tabled and have an opportunity to present it.

Would it be helpful to you if we were to amend the Standing Orders or create some kind of mechanism to have you automatically appear?

[Mary Dawson]

It's up to you. What was noteworthy is the length of time that I was never invited to appear. It was three or four years that went by. Of course, I go to ETHI at least once or twice a year, because they do my estimates. You guys don't do my estimates. They also oversee, to some extent, though not the same way you do, the Conflict of Interest Act, so there's a different relationship.

It's just noteworthy that this committee has not invited me to come for a number of years.

[Arnold Chan, Liberal, Scarborough—Agincourt, ON]

Is there a particular time frame that you would look at? Your requirements are to report by March 31 of each year.