Evidence of meeting #74 for Official Languages in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was penalty.
A recording is available from Parliament.
Senior Counsel, Office of the Commissioner of Lobbying
We've seen that public reports tabled in both houses of Parliament were a way of discouraging lobbyists from not complying with the Lobbyists' Code of Conduct. It's clearly bad publicity when a report names a lobbyist for failure to comply with the principles and rules of our code. Even though it's not a monetary penalty, it's still a penalty.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
I want to be sure I understand what you're explaining.
Whether it's the Office of the Conflict of Interest and Ethics Commissioner or the Office of the Commissioner of Lobbying of Canada, if your only deterrent power were to make a recommendation, that would be enough. Have I understand, or is that wrong?
Director, Advisory and Compliance, Office of the Conflict of Interest and Ethics Commissioner
The commissioner genuinely believes in transparency and feels that making a report public is the best penalty that can be assessed. I share that opinion. The commissioner conducts an investigation, which is followed by a public report, and that is the commissioner's preferred penalty.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
If that didn't exist, if she only had the power to make recommendations, what would you think?
Director, Advisory and Compliance, Office of the Conflict of Interest and Ethics Commissioner
Even when she investigates a violation of the Conflict of Interest Act, the commissioner does not impose any penalties. She issues a recommendation. She can assess a penalty, in that she can tell the employer, the Prime Minister, or the minister in question, that an employee has committed that violation. It's then up to the minister, the Prime Minister, or the employer to penalize that employee.
However, when she produces an investigation report, the commissioner does not impose any penalties. She believes that the publication of that report truly is a severe enough penalty.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Yes.
What you're telling us is that, at the end of the chain of events, there's always someone, such as the employer, as you say, who can impose a penalty based on the commissioner's recommendations.
Director, Advisory and Compliance, Office of the Conflict of Interest and Ethics Commissioner
The employer could impose a penalty. However, the Conflict of Interest Act does not provide for a substantive penalty.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Thank you very much.
Mr. Lefebvre, the floor is yours.
Liberal
Paul Lefebvre Liberal Sudbury, ON
Thank you.
There is a major distinction to be made, in my opinion. We're talking here about a public office holder, a member of Parliament, or someone working in a minister's office. The deterrent is therefore the embarrassment caused to that person. It's embarrassing to see your name mentioned in a report. The situation is different.
With the Official Languages Act, however, if someone contravenes the act and if it likely won't bother them to have it included in a report, because the situation has been going on for 20, 30 or 40 years, there's clearly no embarrassment or deterrent.
I fully understand what my colleague Mr. Arseneault wanted to know, and I agree with him. However, we're comparing two different situations, in my opinion.
If an individual receives a penalty, I want to know what happens next.
Mr. Bergen, you said that there's an appeal mechanism. Who considers the appeal? Clearly, it must be an administrative tribunal, as it's done internally. We're dealing here with administrative law. If a person receives a penalty in the form of a fine, they have the right to appeal. Can you explain how that works?
Senior Counsel, Office of the Commissioner of Lobbying
In effect, the commissioner does not have the power to issue a fine.
Senior Counsel, Office of the Commissioner of Lobbying
The act indicates that a person must be found guilty by a court of law for the offence to be sanctioned. Here, in Ontario, it's the Ontario Court of Justice that handles that. The RCMP conducts an investigation and the public prosecution office lays charges.
Conservative
Conservative
The Vice-Chair Conservative Alupa Clarke
Mr. Samson, it will be your turn in a moment, but first, I would like to very quickly make a comment and ask a question.
Mr. Arseneault asked an extremely important question that goes to the heart of our study today.
Regardless of the nature of the measures that you can impose, the fact remains that you have power and authority that the Commissioner of Official Languages does not have. You say that a public report is the worst penalty that can be imposed on a politician. The question is a fundamental one: without that power, without the authority that you have, regardless of its nature, could your office function properly?
Director, Advisory and Compliance, Office of the Conflict of Interest and Ethics Commissioner
As I already said, for us, the answer is yes. We can't impose penalties for basic violations. Thus, someone who contravenes a substantive provision of the Conflict of Interest Act and is in a conflict of interest would not receive any penalty from us.
Conservative
The Vice-Chair Conservative Alupa Clarke
What about you, Mr. Bergen? Without that absolute power, could you function properly?
Senior Counsel, Office of the Commissioner of Lobbying
It's hard for me to answer that kind of hypothetical question.
When the Lobbying Act was first enacted back in the 1990s, there was consideration of the possibility of having a voluntary registry of lobbyists. Parliament considered that and committee hearings were held and many people made representations. In the end, Parliament decided that we couldn't have a voluntary registry of lobbyists because then some people would do it and others wouldn't and there wouldn't be any way to get them to do it.
Conservative
The Vice-Chair Conservative Alupa Clarke
That answers my question quite well. Thank you.
Mr. Samson, the floor is yours.
Liberal
Darrell Samson Liberal Sackville—Preston—Chezzetcook, NS
I'll give some of my speaking time to Mr. Lefebvre so he can finish asking his questions.
Liberal
Paul Lefebvre Liberal Sudbury, ON
Thank you, Mr. Samson.
In effect, your measures present considerable differences.
For our part, we're examining the possibilities and determining whether we should recommend that the Commissioner of Official Languages have the power to impose administrative monetary penalties or to apply other measures
I'd like to come back to Mr. Bergen's comments.
You're now at 10 cases, right?
Senior Counsel, Office of the Commissioner of Lobbying
We've filed 10 public reports related to the Lobbyists' Code of Conduct.
Liberal
Paul Lefebvre Liberal Sudbury, ON
Do you think that the Lobbying Act has had the desired effect? Have you been able to achieve the goals and objective of the act?