Procedure and House Affairs Committee on Feb. 10th, 2022

[The Chair, Liberal, Bardish Chagger]

Good morning. I call this meeting to order.

Welcome to meeting number seven of the House of Commons Standing Committee on Procedure and House Affairs.

The committee is meeting today to continue our review of the conflict of interest code for members.

I would like to remind all participants that no screenshots or photos of your screen are permitted. Given the ongoing pandemic situation, all those attending the meeting in person should be adhering to the public health guidelines. There is no one who is joining us here for the first time, so I will not go onto the details so that I can ensure that we can maximize our time with our guests.

I will ask that all comments and responses be made through the chair. The more that happens, the less I will interrupt, and then we can maximize our time here together.

We have our Clerk, Mr. Charles Robert, as well as our Law Clerk, Mr. Philippe Dufresne, joining us today.

Combined, you will have 10 minutes for your opening comments, so I will pass the floor now to you.

Welcome to the Standing Committee on Procedure and House Affairs.

[Charles Robert, Clerk of the House of Commons]

Thank you, Madam Chair.

I'm here today accompanied by Philippe Dufresne, law clerk and parliamentary counsel, to contribute to your committee's review of the conflict of interest code for members.

The House of Commons, as part of its parliamentary privileges, possesses the exclusive right to regulate its own internal affairs. The House's right to discipline its own members for misconduct is closely related to this right and to its authority to maintain the attendance and service of its members.

The conduct of members is regulated in part by the conflict of interest code for members in appendix 1 to the Standing Order of the House. The code has been adopted by the House as an exercise of its exclusive right to govern its internal affairs, as I said.

As well, the Conflict of Interest and Ethics Commissioner carries his functions within the institution of the House of Commons. He enjoys the privileges and immunities of the House and its members when carrying out his duties under the code and the Parliament of Canada Act.

If the commissioner, following an inquiry under the members' code, concludes that a member has deliberately contravened the conflict of interest obligations set down in the code, the commissioner may recommend appropriate sanctions. The member is then subject to the disciplinary powers of the House, if the House chooses to take action.

The House administration has reviewed the code and we have identified a few procedural and legal elements in it that could be examined and addressed by this committee as part of its comprehensive review.

I will now turn it over to my colleague Philippe Dufresne, who will walk the committee through the House administration's specific recommendations and observations.

[Philippe Dufresne, Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Madam Chair and committee members.

As law clerk and parliamentary counsel to the House of Commons, I'm pleased to be here with the committee members to answer their questions about today's topic.

As the clerk of the House of Commons said, the House administration reviewed the code and identified a few procedural and legal elements that could be examined and addressed by this committee as part of its review.

First, section 28 of the conflict of interest code for members addresses the treatment of a commissioner's inquiry report in the House of Commons.

It's understood that the elements in this section continue to apply notwithstanding a prorogation or dissolution of Parliament. This can raise some questions regarding the timelines set out in the code. Consider in particular the right to make a statement within 10 sitting days of the tabling of an inquiry report and the timeline of 30 sitting days to dispose of the commissioner's report in the chamber.

The committee may want to consider whether these timelines should start anew in a new Parliament. This would provide a member who's the object of a report the opportunity to make a statement in the House to the members who will ultimately vote on the report, not the members of the previous Parliament.

Another related issue is whether and how the provisions of the code could be adjusted to deal with an inquiry report when the member involved is no longer a member at the time that the report is considered in the House. An example would be if the member has stepped down or hasn't been re‑elected following a dissolution.

It should be noted that there are provisions for this issue in the code of conduct for members of the House of Commons: sexual harassment between members.

Second, there might be an interest in clarifying the process that applies to the House's debates on a commissioner's inquiry report. The code provides that in the case of a report that has found a contravention, the debate on the report is limited to two hours and each member may speak only once and for a maximum of 10 minutes. However, where a commissioner's inquiry report has found no breach of the code, there's no similar time limit, and the code does not address members' participation in the debate, which can have the perhaps unintended consequence of resulting in a longer debate. The committee may wish to look into this issue to assess whether there are good reasons to treat these types of reports differently in the chamber.

Another issue that this committee may wish to look at is the effect of the House's concurrence in a commission's inquiry report that contains recommendations. As set out in the code, the commissioner may recommend appropriate sanctions, in his inquiry report, if he finds that a member has contravened the code. The commissioner may also include general recommendations regarding the code itself.

To avoid the risk of ambiguity as to whether the commissioner's recommendations in a report automatically become orders of the House following concurrence in a report, the committee may wish to examine whether provisions around the effects of adopting of a commissioner’s report ought be clarified.

Finally, sections 31 and 31.1 of the code suggest that documents received by the commissioner in the pursuit of his mandate under the code, including as part of an inquiry, may be subject to production following a court order.

Given that the mandate of the commissioner is rooted in parliamentary privilege and the commissioner enjoys the same privileges of the House in carrying out his duties and functions under the code, the commissioner's documents wouldn't be compellable by courts. These provisions in the code could raise questions about whether the House intended to limit its privileges in this area.

It should be noted that the proceedings of a committee or the Board of Internal Economy examining the conduct of a member are exempted, as parliamentary proceedings, from disclosure to a court or other body and couldn't be used as evidence due to parliamentary privilege. The same should arguably apply to the commissioner's proceedings. If the committee wishes to address this issue, it may want to know the commissioner's perspective and relevant experience.

Regarding another matter, in October 2018, the commissioner published an advisory opinion on the provision of intern services to members by third parties free of charge. In his opinion, the commissioner stated that interns provided to members free of charge by a third party “are not volunteers” under the conflict of interest code because they receive a stipend or are paid by the organization that placed them. Therefore, the commissioner found that such services constitute a “benefit” under the code, a service or property that is provided without charge or at less than its commercial value, other than a service provided by a volunteer.

In sum the commissioner found that it was not acceptable for members to benefit from the services of interns provided to them free of charge by a third party if: the organization placing the intern is registered to lobby the House; or the member has or may have official dealings with the organization placing the intern now or in the future.

The commissioner added that even if it is acceptable for members to accept the services of interns provided by third party organizations free of charge, they are still required to “report the benefit within 60 days after the start of the internship”.

At its meeting of December 6, 2018, the Board of Internal Economy considered the commissioner’s advisory opinion. In a letter to the commissioner dated December 21, 2018, I indicated that in my opinion the provision of interns by the parliamentary internship program is consistent with the code in accordance with the commissioner’s advisory opinion, provided that the members using such interns are not likely to have official dealings with the organization and they report the service within 60 days after the start of the internship. I confirmed that the House of Commons would therefore continue to work with and support the parliamentary internship program in its mandate.

Given its review, the committee might wish to consider the issue of whether and to what extent the provision of interns to members of Parliament free of charge, as had existed prior to October 2018, ought to be permissible under the code.

Additionally, at his appearance before the committee last week, Commissioner Dion presented six recommendations for possible amendments to the code. While we have no specific comments on the recommendations, we're happy to answer any questions on any implications they might have for members.

Thank you to the committee for the invitation. We're happy to answer any questions you might have.

[The Chair, Liberal, Bardish Chagger]

That's excellent. Thank you so much for those opening comments.

I will just remind everyone that within this chamber the verification officer will turn on and off our mikes, and anyone participating online will take care of their own mikes.

We will now enter round one, six-minute rounds, starting with Mr. Barrett, followed by Mr. Turnbull.

Mr. Therrien will be next, followed by Ms. Blaney.

You have six minutes on the topic of the review of the conflict of interest code for members of Parliament.

Mr. Barrett, the floor is yours.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Thanks very much, Madam Chair.

Through you to our witnesses, my thanks to them for appearing today to help us as we work on our review of the code.

Through you, Madam Chair, you mentioned, Mr. Dufresne, that you reviewed the recommendations made by the commissioner last week and didn't have specific recommendations. I'm not sure if you had the opportunity to also observe or review the transcript of our meeting. There was a great deal of discussion on two items in particular, and I'm just wondering if, through the chair, you could give us your interpretation or recommendation.

One is with respect to the definition of “family”. There was a great deal of discussion on the definition of family. If it's extending to first cousins, for example, or to nieces and nephews, we can see that the further you extrapolate, the more challenges that will present for members even in wanting to comply with the spirit of the code and being unable to do so. Also, I think one of the members raised this for their brother; they're not comfortable seeking their brother to disclose their financial dealings or personal interests. By virtue of that, it would be hard to say that the dealings of their brother would impact their ability to do their job. Obviously, more clarity is needed there. Certainly, it needs to be clear.

The other item that I'm wondering if you wanted to speak to if you have a moment is the question of the threshold. There was talk of a threshold of $30 or $50, or of $170 for a painting or up to $200, as to whether it is acceptable or it is not. The context was that of gifts from people who lobby us or in having a ticket to an event or food at an reception. I think it's really important that we have robust rules that ensure the integrity of members and their ability to discharge their duty as parliamentarians, but we need to set members up for success, as people who want to comply with the spirit of the rules and want to be transparent. We don't just want to catch people out. I think that's important.

On the question of the threshold for gifts, and also on the question of family, I would be interested in your advice to the committee, through the chair, based on our discussions to this point.

[Philippe Dufresne]

Sure. Thank you.

Through you, Madam Chair, on the issue overall, some of the comments and other remarks that we would make are that in considering any recommendation or any potential change, I think it's important to consider the roles of the members, the nature of the role of members and the implication and impacts of any given increase in obligations and follow-ups that would be required. What will it mean? Will it be practicable? Will it be justified in terms of the concern that it is meant to address?

In terms of the definition of “family members”, the commissioner indicated that the goal was, as I understand it, in part to harmonize with the definition that the Board of Internal Economy has adopted. I think it's important to look at the purpose and the impact of the definition. The Board of Internal Economy's by-law for members is dealing with different things, the same as the Conflict of Interest Act is in dealing with ministers. The board has adopted a broad definition of “immediate family” for the purpose of indicating with whom a member may not contract and who a member may not hire. The obligation is on the member.

In terms of the code, there are other obligations, as you indicated, in terms of disclosure—disclosing the financial assets and so on. A broad definition like that would have different impacts and broader impacts. I understand the commissioner's recommendation, though, to be only with respect to furthering a person's interests. If this committee decides to adopt it, they would have to make sure that it's not expanding that for purposes that would go beyond the needs.

In terms of the gift rule, I think the weighing that you would do as a committee is in establishing: Is this justified? What kind of onus will this put on members in terms of assessing the value? Is it going to be manageable? Is going to be resulting in an obligation that is so great that it is higher than needed?

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

I appreciate the response very much. I think we have to take a look at what the reality in 2022 is of some of what we face. I'm sure that as costs have gone up and there's a lot of talk about inflation, a visit to a reception by a lobbyist could trip you up, and whether or not a sandwich at a reception is something that a reasonable person would deem unacceptable is certainly problematic.

On the point with respect to the employment of family members, obviously that's something.... If you didn't know that someone was your sibling, there would need to be a reasonableness test applied to that, of course, but harmonizing those recommendations is important, as is understanding that in the act there is a higher threshold for ministers and designated public office holders than there is for members. I think that distinction is important.

I appreciate your comments on that.

Thank you, Madam Chair.

[The Chair, Liberal, Bardish Chagger]

Thank you, Mr. Barrett.

Now we will pass the floor to Mr. Turnbull for six minutes.

[Ryan Turnbull, Liberal, Whitby, ON]

Thank you, Madam Chair.

Thank you to both witnesses for being here today. It's a pleasure to hear from you, as always.

I have numerous questions, as always. I want to start with this one. It relates to section 27 of the current code, “Request for an inquiry”. I see a challenge here. One of my concerns that's come up throughout the last Parliament and continues within this Parliament is that the conflict of interest code seems to be at least vulnerable to being used for political purposes from time to time.

Subsection 27(1) stipulates that a member can request an inquiry. That inquiry has to have some “reasonable grounds” for contravention of the code. When you look at subsection 27(2.1), “No public comment”, it really stipulates that members who have filed for an inquiry or have made a complaint about another member cannot make public comment, but it's really only until 14 days have elapsed.

In fact, although the Ethics Commissioner needs to look at whether or not a complaint or inquiry is merited, whether or not it is reasonable, this allows members of Parliament to, if they so wish, go out into the media and claim that they've made a complaint when there is no reasonable grounds to justify the complaint. This opens up the code, I believe, to being used for political purposes, which is not the spirit of a conflict of interest code. That does not enhance public trust.

I wonder, Mr. Dufresne, whether you think there could be some adjustments made there to prevent the code from being used for political purposes.

[Philippe Dufresne]

I don't have a specific recommendation on that point. I think this is the balancing that the code needs to achieve and that this committee needs to achieve and consider in terms of having a process—a process that's accessible, a process where there's no chilling effect on the raising of issues—but at the same time understanding the context in which this is taking place with members of Parliament in a very public sphere, with public reputations. What would be the impact of the mere filing of a complaint?

Now, the code does provide that, at the end of the day, there can be some filings in terms of whether a complaint is frivolous or vexatious, so there may be some remedy there in terms of findings at the end of the day. But that is the challenge in terms of whether and to what extent you will be limiting the ability of members to speak.

[Ryan Turnbull, Liberal, Whitby, ON]

Just to follow up on that, Mr. Dufresne, I want to ask you, through the chair, if this is regular practice within the law. If you make an accusation of someone being in contravention of something, or having broken the law in a legal case, you're not able to go out, I assume, and amplify that message, when you're in a court proceeding, when someone has not been convicted of a crime.

In this case, I guess I'm thinking about how we protect a person's reputation from being wrongfully damaged based on a false complaint.

[Philippe Dufresne]

There are often some public discussions about issues that are raised in court proceedings and the parties. There is the sub judice principle, where one ought not to be arguing the case in public, but obviously there is a freedom of expression and the ability to speak.

In terms of the question of what can be done by the code or by the House, I think one way is outreach—which was perhaps one of the commissioner's recommendations as well—and having a good understanding of what it means to have a complaint made and raised. It doesn't mean that it's substantiated. There's a process to look at it.

So perhaps have a better understanding that the mere making of an allegation shouldn't be taken as establishing it, but rather that it's there and it will be treated and when it's resolved you have the outcome.

[Ryan Turnbull, Liberal, Whitby, ON]

I guess my concern is that members of Parliament can be essentially tried in the court of public opinion and their reputations can be severely damaged for a wrongful claim that's made against them. That's my concern. To me, increasing the threshold here to perhaps once a report is completed would help to protect against that kind of behaviour. We have seen some of that, from my perspective.

Would you say that this would help, or are there other ways in which we could tighten up that section of the code?

[Philippe Dufresne]

The committee can decide to recommend changes to the code. Those would go into that direction and would indicate the House's expectation of its members when they're making complaints.

[Ryan Turnbull, Liberal, Whitby, ON]

Mr. Robert, thank you for being here.

With all your years of experience, I just want to ask you about the overall code in terms of its spirit.

I've studied ethics for many years, and I happen to think that perhaps members of Parliament don't always understand the guiding principles that are inherent within the code. I wonder if you think the code is overly compliance-based or maybe, like me, suspect that we could enhance the guiding principles of the code so as to hopefully build moral judgment among members of Parliament.

[Charles Robert]

It's an interesting question. Thank you for asking it.

Madam Chair, I would say, really, the purpose of the code is, in some sense, largely reputational. We put this in place at the insistence, basically, of a public that is increasingly skeptical about the behaviour of parliamentarians. This is a way to, in some sense, respond to that.

It is hard to be sure we're going to be successful. A lot of it really depends—and with respect to the question you were asking of Mr. Dufresne—on voluntary compliance. These are meant to be guideposts to at least establish the minimum boundaries we should observe to better ensure the overall reputation of Parliament itself, not just of the individual members. That's really, I think, the objective of this code. Our success will be measured, really, in our assessment of how, in general terms, the code responds to the public's expectations.

[The Chair, Liberal, Bardish Chagger]

Thank you.

I'll now give the floor to Mr. Therrien.

You have six minutes.

[Alain Therrien, Bloc, La Prairie, QC]

Thank you, Madam Chair.

I want to thank both our witnesses for coming to enhance our knowledge.

When we spoke to the Ethics Commissioner—I found grey areas in terms of defining family, friends, and so on—I asked him whether he was under any significant pressure to make a decision. He had to eliminate these grey areas in very concrete situations and decide how to strictly enforce the code.

I was struck by his response. He said that the pressure wasn't on him, but on the members. In other words, we must have an impeccable work ethic. I think that all my colleagues here know that we're under a great deal of pressure to ensure that we do our jobs properly.

For example, you spoke earlier about internships. I could probably recruit a university student, and this internship would be part of their study program. My first instinct would be to check with the commissioner to make sure that I was following the rules.

Would you advise me to do that? Would you advise members to check with the commissioner to make sure that they don't get caught up in anything and end up in an awkward situation? In the event of an uncertain situation, would you advise members to meet with the commissioner to ensure that they act appropriately?

[Philippe Dufresne]

I think that the commissioner made this recommendation when he appeared before your committee. He said that, when in doubt, you could contact him for a preliminary opinion. This would basically provide some protection for you afterwards. You could first say that you checked with the commissioner and that you were monitoring the situation. You could then say that you received the imprimatur of the commissioner or that the commissioner told you that you had acted appropriately. I think that this approach is good when in doubt.

Now, if any doubts are more systemic or persistent because of the code itself, it might be worthwhile to ask for some clarifications regarding the code. That way, members wouldn't always need to go looking for piecemeal advice and this would confirm that the point has been made.

When we spoke earlier about interns, the issue that arose was whether the use of an intern wasn't more of a benefit to the intern. Perhaps this aspect should be addressed differently in the code. That issue was raised.

[Alain Therrien, Bloc, La Prairie, QC]

In terms of grey areas, I identified a few. My colleagues referred to them earlier.

I looked at the definitions of “family” and “friend,” the activities that we can do and the sources of the gifts. I asked the Ethics Commissioner many questions about the last item and I'm still not convinced that I've understood all the sources.

We're allowed gifts under $30. However, there may be times when the total value of the gifts exceeds that amount, even if the gifts are from different people, but from the same source.

I honestly don't think that this type of situation would happen to me. That said, imagine that a member has a definition in mind when they think of someone whom they don't necessarily consider a friend or a family member. I think that Mr. Barrett was talking about this earlier. Imagine that the definition provided by the Ethics Commissioner shows that the person is considered a friend or family member and the member's reputation is tarnished.

Has there ever been a case where ambiguity in the definitions has resulted in disciplinary action against a member, even if that member didn't act in bad faith?

[Philippe Dufresne]

The commissioner is the one who could answer that question. He could check his records to see if he has ever dealt with this kind of situation.

I think there are more specific requirements in the code. For example, one cannot in any way favour one's personal interests or those of a family member. On the other hand, one cannot unduly favour the interests of any other person. The meaning of the term “unduly” is more flexible and therefore leaves more room for ambiguity.

In the case of very specific definitions such as for “family”, the approach to take is to ensure that you are comfortable with and understand these definitions.

In the case of the term “unduly”, one should first rely on one's own judgment, and if in doubt, consult the commissioner's office, stating that one believes one understands that meaning well, but prefers to know the commissioner's opinion for the sake of caution.

[Alain Therrien, Bloc, La Prairie, QC]

As far as the definition of “friend” is concerned, I think it has been added.

Do you think this is a good idea, and should we better define what a friend is in the conflict of interest code for MPs?

[Philippe Dufresne]

The notion of friend in the Conflict of Interest Act is something that refers to public office holders, including ministers and appointees. To my knowledge, the definition is not in the act but this is done as part of the commissioner's analysis on the facts.

In your question, you asked whether the same requirement should apply in the context of MPs' work, whether the requirement level that applies to ministers is necessary for MPs, given the context in which MPs carry out their role. Or is the more general notion of “unduly” sufficient for these purposes?

Certainly, when comparing the two, it can be seen that in the act the bar is set higher for ministers, as the definition explicitly includes friends.

[Alain Therrien, Bloc, La Prairie, QC]

I understand.

[The Chair, Liberal, Bardish Chagger]

Thank you, Mr. Therrien and Mr. Dufresne.