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

[The Chair, Liberal, Bardish Chagger]

We are going to start with the second round.

I would like to thank our visitors joining us today.

We have the provincial conflict of interest commissioners from Ontario, Quebec and the Northwest Territories. We'll give each up to five minutes for their opening comments, and we'll just flow from one to the next.

We'll begin with the Integrity Commissioner of Ontario, to be followed by the Quebec Ethics Commissioner.

Last will be the commissioner for the Northwest Territories.

Welcome to you all.

You have the floor.

[J. David Wake, Commissioner, Office of the Integrity Commissioner of Ontario]

Thank you for inviting me here today.

In my opening statement, I'll provide you with a brief overview of certain features of the Members' Integrity Act, which is the Ontario legislation that sets out the ethical obligations for members of provincial Parliament. I will also comment briefly on some of the issues this committee will be considering in its review of the conflict of interest code. That said, I believe I can best assist you by allowing members to ask me questions and providing Ontario's experience on the topics that are of interest to the committee.

First, I thought I should clarify that in Ontario, the Integrity Commissioner has the mandates and authority of three federal independent officers, including the Conflict of Interest and Ethics Commissioner, the Commissioner of Lobbying and the Public Sector Integrity Commissioner. I'm also the ethics executive for ministers' staff, as well as for the secretary of the cabinet. Having these multiple roles can be beneficial, because it provides me with an understanding of the ethical issues that elected officials face, as well as the ability to address them in other ways. For example, not only can I advise a member under the act whether he or she can accept an offered gift from a lobbyist, I can also advise a lobbyist not to offer that gift in the first place.

In Ontario, the Members' Integrity Act lays out the conflict of interest rules for elected members, as well as their annual financial disclosure requirements. The act also contains the requirements and restrictions for ministers. In many ways, the rules and requirements are similar to those federally, and the act provides that members can seek my advice on their ethical obligations and any conflict of interest matters. The number of inquiries I receive each year averages in excess of 300, all of which are responded to in writing so the member can rely on that advice. In the year following the 2018 provincial election in Ontario, I responded to more than 530 inquiries. This was due to the high number of new members who had been elected, all of whom attended a training session I conducted shortly after the election.

I note that Commissioner Dion has recommended mandatory training for newly elected MPs. While Ontario does not have mandatory training, there is a long-standing history of commissioners addressing newly elected members following an election. I find this serves as a helpful introduction to the commissioner, the office and the act. However, we also have another requirement that serves as a form of training. Similar to the requirement in the conflict of interest code, members of provincial Parliament have an annual requirement to provide the commissioner with a private disclosure statement of their assets and liabilities, along with that of their spouse and any minor children.

Along with this disclosure process, the act requires that each member meet with the commissioner to discuss the statement and their obligations under the act. Meeting individually with all 124 MPPs certainly takes time, but it allows me to ensure that their financial disclosure is in line with the requirements of the act. It also provides me the opportunity to discuss any conflict of interest situations they may be facing, or to remind them of specific rules under the act. I view this annual activity as a form of refresher training for members about their obligations, and I emphasize that I do this on a one-to-one basis.

Of course, training can be effective in many different formats, but I will say that in my experience, the key to carrying out such activities is to build trust between the ethics office and the elected members. This ensures that members feel comfortable contacting the office when they need advice.

I've reviewed the recommendations that Commissioner Dion has made for amending the code. While several of them are specific to the language of the code and the system in place for the House of Commons, I want to touch on two of them as they relate to the Ontario experience.

The first is recommendation number four regarding treating sponsored travel as a gift. This is the approach taken with Ontario's legislation, meaning that a member must seek my advice and determination on whether he or she can accept the offer of the trip.

[The Chair, Liberal, Bardish Chagger]

Mr. Wake, I thank you for your comments. We appreciate your written submission as well, but just to keep us on time, we will go to Madame Mignolet now.

Ms. Mignolet, you have five minutes.

[Ariane Mignolet, Ethics and Deontology Commissioner, National Assembly of Quebec]

Madam Chair, members of the committee and fellow commissioners, before I begin, I would like to thank the committee for its invitation to participate in this consultation. The exercise that you have recently embarked upon is of great importance for our democratic institutions if they are to be in tune with the reality in which they operate. As you have requested, I am here today to share my thoughts with you on the means by which parliamentarians' questions relating to their obligations under the code can be addressed in a non-partisan and independent manner. I will also speak on how parliamentarians can reconcile their private interests with their public duties and functions.

First of all, it seems obvious to me that the person responsible for applying the code of conduct for elected officials has a scope of independent action that is commensurate with the process of their appointment. In Quebec, the Ethics Commissioner is appointed by the national assembly, by two thirds of its members. This status allows the office holder to exercise public office in an independent and impartial manner. The appointment of the commissioner is different from that of other appointees, however, since it must be proposed jointly by the premier and the leader of the official opposition after consultation with the leaders of the other parties represented in the assembly. In making this choice, parliamentarians have demonstrated the exceptional and delicate nature of this unique position, and the importance of appointing a person in whom all members of the national assembly can have confidence.

The independence and impartiality of an institution such as the commissioner's position must also be embodied in the mechanisms to prevent conflicts of interest, real or apparent; they must deal with situations where the ethical obligations of elected representatives are not respected.

The Quebec code, by allowing the commissioner to give advice to MNAs, encourages MNAs to be proactive and transparent. In addition to being confidential, advice can only be requested by the member of the national assembly directly affected by a given situation. Moreover, the situation cannot be hypothetical; it must be based on concrete facts. These criteria undoubtedly contribute to preserving this tool from attempts at instrumentalization.

As for investigations, there are also mechanisms to ensure that the independence granted to the commissioner in the interpretation and application of the code's provisions is respected. For example, when a member of the national assembly requests an investigation, it must be focused and substantiated. The request must clearly set out the reasonable grounds for believing that another member of the national assembly has breached the code, including a statement of the facts and the evidence available, if any. A member cannot ask the commissioner to conduct blind audits to determine whether there is a basis for an investigation. In investigations undertaken at my initiative, I also adhere to this reasonable grounds standard.

In a parliamentary system now characterized by fixed-date elections, which suggests a sometimes more intense political dynamic at the end of the cycle, these criteria can act as safeguards. Moreover, the assembly, by virtue of the parliamentary privilege to discipline its members, reserves the right to adopt a sanction following a report finding a breach; however, the interpretation of the provisions of the Code of Ethics and Conduct of the Members of the National Assembly is the exclusive responsibility of the commissioner, who may also issue guidelines if they deem it appropriate.

As to how elected officials can reconcile their private interests with the exercise of their office, there is no easy answer. The difficulty lies in the fact that the rules must be applicable to all, while their interpretation must inevitably take into account the context and facts surrounding each situation. It is therefore necessary, in order to ensure a certain predictability of the rules, to find a balance in their assessment in light of particular circumstances, without proceeding only on a case-by-case basis. Moreover, the backgrounds from which elected representatives come are diverse, and the contexts in which their functions are exercised evolve rapidly. This notion of necessary applicability therefore makes review exercises like the one you are conducting extremely timely. In Quebec, the legislator also wanted such an exercise. The code in fact provides that the commissioner shall report every five years on its implementation and on the advisability of amending it.

But it is unrealistic to believe that these exercises can be held with such frequency that codes of ethics will succeed in providing an appropriate response to any situation every time, especially as they depend on a consensus between parliamentary groups. I am therefore of the opinion that office holders such as myself must be allowed a certain amount of leeway in the application of ethics rules, so that they reflect the values of society as much as they encourage compliance from the parliamentarians who must respect them.

Thank you.

[The Chair, Liberal, Bardish Chagger]

Thank you very much.

Now we go to to Mr. Jones, responsible for Northwest Territories and Yukon.

Mr. Jones, you have up to five minutes.

[David Phillip Jones, Yukon Conflict of Interest Commissioner, and Northwest Territories Integrity Commissioner, Yukon Legislative Assembly and Northwest Legislative Assembly]

Thank you, Madam Chair, for the privilege of participating in this panel.

As you've just noted, by separate appointments I am the conflict of interest commissioner in Yukon as well the the integrity commissioner of the Northwest Territories. The two are not connected. I just happen to hold both offices. In both cases, I am an officer of the respective legislative assembly. Each assembly has 19 members, which makes my scale of operations enormously smaller than Mr. Wake's, Madame Mignolet's or yours.

I live in Edmonton; I do not live in either territory, nor does the integrity commissioner of Nunavut live in Nunavut. We could not do so without our undoubtedly being in conflict of interest just by our daily lives.

I've been the conflict of interest commissioner for Yukon since 2002, for 20 years. The Yukon legislation applies to members, ministers, employees in the cabinet and caucus offices and deputy ministers. It came into force in May 1996. It has only occasionally been updated, notwithstanding various suggestions for doing so contained in my annual report. They don't have the political will to do what your committee is doing and required to do to review their code. It obviously seems to be meeting their needs.

Since July 2020, the Lobbyist Registration Act of Yukon has assigned certain functions to the commissioner, and I have to say that I have some concerns about adding functions to the commissioner, because the commissioner inherently is an officer of a legislative assembly, and a lot of the other functions are not necessarily of the same nature in kind and might not be privileged under parliamentary privilege.

I've seen the Northwest Territories conflict of interest commissioner title changed recently to integrity commissioner since 2014. The NWT legislation applies to members and ministers. By a separate appointment, I am the ethics counsellor for deputy ministers, but it's a separate appointment. There were amendments in 2019, so NWT has periodically reviewed its code, as you are doing.

In 2019, the assembly gave my office jurisdiction with respect to dealing with breaches of the members' code of conduct, which continues now from assembly to assembly; it doesn't die and have to be re-enacted. It can be amended by future assemblies, and the provisions of the code go beyond strict financial conflicts of interest.

The commissioner's role in dealing with complaints alleging breaches of the act, whether conflicts of interest or of the code, is as a gatekeeper to decide whether complaints should be dismissed on certain grounds or sent to a sole adjudicator for a formal inquiry and recommendation to the assembly. If there is a complaint in NWT, I have a role as gatekeeper, but I don't have a decision-making role in the ultimate merits of the complaint. I think the NWT and perhaps Nunavut are the only jurisdictions that separate those two functions.

In 2021, last year, the assembly accepted a report from a sole adjudicator, expelled a member and declared the seat vacant. That seat was just filled by a by-election on Tuesday of this week.

I've also acted as legal counsel for a number of conflict of interest commissioners across the country.

In my view, it's imperative that members recognize and live up to the standards they have put in place for themselves. In my experience in both jurisdictions, members overwhelmingly want to do this, and they're generally quick to seek advice in advance about what they do and to follow that advice. It is critical for all to recognize the importance of the applicable standards in order to maintain public confidence in the integrity of members.

However, it is extremely important that unfounded allegations of conflict of interest, even for that matter, founded ones, not become political weapons of choice. Politicizing the office is not helpful. This is not just by other members, it's by the press or by the public.

With respect to some of the comments in your previous session, NWT has a set of guidelines for letters of support that members might write on behalf of constituents or others. They're very clear that it does not prevent a member from doing their duties as a member representing their constituents, but that is very helpful, in my view. Yukon doesn't have similar guidelines.

[The Chair, Liberal, Bardish Chagger]

Thank you so much, Mr. Jones, for those comments. We look forward to hearing more from all of you.

We are now going to start our first round of six-minute questions.

We'll start with Mr. Barrett, then Mrs. Romanado, Mr. Therrien and Ms. Blaney.

It will most likely be our only round, so I'm giving you a heads-up that members might be asking questions we would like you to get back to us on, and we would appreciate any insights you would share.

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

To Mr. Duncan, Madam Chair.

[The Chair, Liberal, Bardish Chagger]

To Mr. Duncan.

[Eric Duncan, Conservative, Stormont—Dundas—South Glengarry, ON]

Thank you, Madam Chair.

Thank you to our witnesses for being here and for your insights into your respective jurisdictions.

In the interest of time, I think it would be good for us to have in writing perhaps more of these detailed responses, but there are five areas that I'll try to get through in six minutes.

Some of the topics I think we've had a lot of questions or commentary on are externally paid interns. In your respective jurisdictions, do you have any sets of rules for members accepting the services of externally paid interns?

I'll start with Mr. Wake.

[The Chair, Liberal, Bardish Chagger]

Through the chair.

[J. David Wake]

Through the chair, Mr. Duncan, there is a legislative intern program where legislative interns are assigned to members. I speak to them every year. They come to my office, but I have no involvement with them beyond that.

[Eric Duncan, Conservative, Stormont—Dundas—South Glengarry, ON]

And, Mr. Jones, what about in your jurisdictions?

[David Phillip Jones]

There aren't any legislative interns in either Yukon or the NWT.

[The Chair, Liberal, Bardish Chagger]

Ms. Mignolet, you have the floor.

[Ariane Mignolet]

In the National Assembly, we have interns from the Bonenfant Foundation, whose internship is similar to what you describe. However, the funding for these internships is through a foundation. So it's not really an issue on our side.

[Eric Duncan, Conservative, Stormont—Dundas—South Glengarry, ON]

In the interest of time, and with the three witnesses here and your experience, I'll perhaps ask you to provide the answer in writing, and our clerk or analysts could follow up with your offices on a couple of other things on topics we've been talking about, one of them being the endorsement of other elected officials at other levels of government. Do you have rules or protocols regarding, for example, a provincial member endorsing an municipal candidate? If there are or if there are rules around the use of resources and your titles around that, that would be appreciated.

Another thing that would be helpful, I believe, in our deliberations would be around when your office starts to get involved in the acceptance and price points of gifts, not only the acceptability of a gift but the public disclosure of that. Do you have a minimum limit at which members would go for declaring or asking if a gift is appropriate or not, not only for public disclosure. At what point they should consult on the acceptability? It would be appreciated to have your written comments on that.

Another thing to ask about is the definition of “friends”, which we've been struggling with. I would be interested in knowing what your definition of “family” is in your respective jurisdictions, but we're struggling with the concept of friends. I joke that I have a lot of friends, I feel, and a lot of people who think they're my friends, and I'm struggling with the.... The government benches are not agreeing right now with my population of friends. Do you have any definition of “friends”? Have you considered it? Whether you have or have not, perhaps provide some reasoning or experience you would have on that.

Finally, Madam Chair, through you, any information you could provide on letters of support for individual applications to government agencies, individual constituents or a request for a service from the government, if you have any advice and experience on that topic, I think that would certainly guide us in our deliberations of the report.

Madam Chair, in the interest of time, I'll leave it at that.

[The Chair, Liberal, Bardish Chagger]

Thank you so much.

Mr. Duncan does have a minute left.

Mr. Wake, would you like to comment really quickly?

[J. David Wake]

Going back to the legislative intern program, the one in Ontario is excellent. In fact, I've hired two of the legislative interns to my office to perform various functions.

Yes, I have information I can give you on all of the topics you've just outlined. We have guidelines for letters of support. With regard to “friends”, I think that's a particularly problematic area to be introduced into the legislation. We've referred to it as “another person”, and let it go at that.

[The Chair, Liberal, Bardish Chagger]

Thank you.

We look forward to sharing them.

Madame Mignolet.

[Ariane Mignolet]

Thank you, Madam Chair.

I, too, will gladly answer these questions in writing. We also have guidelines that deal with letters of support. Like Ontario, we do not have a definition of the word “friend”. It is treated like the term “other person”, but I would be happy to discuss this and the rules governing gifts. We will send you that information.

[The Chair, Liberal, Bardish Chagger]

Thank you very much.

Mr. Jones, would you like to comment quickly?

[David Phillip Jones]

Yes. Both Yukon and NWT have a dollar limit for acceptable gifts. They must be publicly disclosed.

Secondly, neither legislation has a definition of friends. There are difficult issues about improperly forwarding the interests of a private person, but it has to be improper.

[The Chair, Liberal, Bardish Chagger]

Thank you so much.

We'll now go to Mrs. Romanado, for six minutes.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Thank you very much, Madam Chair.

I thank the witnesses for appearing before us today.

Mr. Jones, you mentioned an issue that my colleague brought up in the previous panel with respect to politicizing complaints. In our code, we have stipulated that a member who requests that an inquiry be conducted shall make no public comments relating to the inquiry until the Commissioner confirms that the member who is the subject of the inquiry has received a copy of the complaint, or 14 days have elapsed following the receipt.

What are your thoughts with respect to the politicization of conflict of interest inquiries, whereby an MP can put forward an accusation or make request for an inquiry? It could be completely unfounded, but as you know, the job that we do is very much in the public domain and this could be spread through social media. The reputation of the member can then be tarnished.

Would you recommend that this provision be removed from our code?