Subcommittee on Disclosure Forms under the Conflict of Interest Code Committee on May 10th, 2007

[Yvon Godin, NDP, Acadie—Bathurst, NB]

I would like to hear some more examples that would help me to understand what this means. I am thinking of direct conflict of interest. I am not talking about helping someone in return for some reward, I am just talking about doing my job as an MP. To me, this seems ambiguous.

[Rob Walsh]

The regulations regarding conflicts of interest contain the term “pecuniary”. This was one of the criteria for deciding whether there was an unacceptable conflict of interest. The term “pecuniary interest” was used. Here, we have no such term for defining.... We could say “commercial”.

Let us come back to the example of Mirabel. Many families lived in that region when the federal government decided to expropriate farms in order to build an airport. Later on, I believe that the farmers asked for more substantial compensation for their land, etc. Let's suppose that you were an MP from the Montreal region and that you had intervened on behalf of a farmer to get him a more substantial compensation.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

And I was also one of the farmers. Is this what you mean?

[Rob Walsh]

No. Let us suppose that you did it in your capacity as a MP. Nonetheless, it involves the private interests of the farmer, the value of his farm, and he was challenging the federal government. Mr. Owen spoke of a clear and objective system of administrative criteria. Ministers often have discretionary powers, and for good reason. It gives them some way to resolve issues that involve thousands of dollars, or even larger amounts.

Where do we draw the line between the valid intervention of an MP on behalf of a citizen and an intervention made for advancing the private interests of someone from his riding who is a good supporter, a friend with whom he has personal or professional ties, etc.? But it was, nevertheless, a valid cause. The farmer wanted a more substantial compensation from the government. This is a good question. It is difficult to judge the member's intervention. Was it acceptable or not according to the code?

[Yvon Godin, NDP, Acadie—Bathurst, NB]

It is not clear.

[Rob Walsh]

That is the problem. Perhaps you have answers or opinions about this, but I do not have any.

[The Chair, Conservative, Scott Reid]

I think we may be approaching the end of the seven minutes, Mr. Godin.

I have Mr. Owen and Mr. Goodyear on the speaking list, and I actually have a question myself, but I'm wondering in the interests of time if the committee would regard it as reasonable if we maybe shortened up the amount of time for each of the back-and-forth exchanges. This is in order to ensure that our guests are able to get through their material by the time we come to the end of our allotted time here.

With that in mind, Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I was going to--

[The Chair, Conservative, Scott Reid]

Is it okay if we say five minutes? I realize you may be taking less than that.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I'll try to make it very quick. I agree we should go ahead and hear the presentation, but there is the issue of the exercise of discretion. Statutory discretion, of course, is there and it's there for good reason, as Mr. Walsh has said. The act of governance has to bring coherence, and sometimes it means looking at different interests in different ways and mediating them.

But discretion as a matter of administrative fairness, so that it doesn't become arbitrary, should be following some objective guidelines in order that people are treated fairly, that different cases are distinguishable and similar cases are treated similarly. So the problem you describe and the confusion is because we don't always do that well in government, and we should. We should do it better in terms of transparency and fair process and objective criteria, so that we can distinguish between things that are different and things that are the same and make sure that everybody gets procedural fairness.

That's why you need a federal ombudsman or, in this case, I think a federal officer of Parliament to help us out with those, to help MPs with some of those, to ensure that the executive has those administrative processes properly thought out and codified.

[Rob Walsh]

Mr. Chairman, what Mr. Owen is saying is that it seems that two members could do the same thing, set up for the same objectives, as in my example of Mirabel, but in one case the minister made a decision that was unfair and in the other case he made a decision that was fair. Where he made a decision that was unfair, the member now has a problem because he advanced some interests improperly. Where the minister made a decision that was fair, the member doesn't have a problem because it resulted in a fair result.

The problem with all of this is that we're looking at what the member of Parliament did, what his intention might be, what his pursuit or objective is. He may have an unfairness objective; he may want his constituent to have a fair shake like anyone else, obviously driven by the perception, to begin with, that what he got before wasn't fair. So there's an attempt to get an appeal or get that revised. Without getting legalistic about process here, my concern is that I don't know that you could measure the character of what the member is doing by the end result.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I think that's right. But the member should conduct himself or herself in a way that is not asking for something improper, that would not be within a fairness regime, from a person exercising statutory discretion.

On the other hand, if the member wants to argue in Parliament for a change in government policy so that expropriation rules are changed, or this particular act that expropriated that property should be changed, that's a parliamentary function, and partisanship is completely fair. That's in a different context.

But I'm slowing things down, so let's--

[The Chair, Conservative, Scott Reid]

I see Mr. Goodyear, and I think I saw Madame Picard's hand go up.

[Gary Goodyear, Conservative, Cambridge, ON]

I'm struggling with this. I think as we talk about it further, it's becoming more and more necessary to define this a bit. In listening to Mr. Owen, for whom I have great respect, I think he's probably got a better handle on this than I would have.

I come from a health care background where all kinds of catastrophic things happen, despite the best intentions. Patients die on the operating table, despite everybody's effort to save them. So the outcome can be a bad thing, but the input was nothing but the best. I think in that case doctors are not charged with malpractice and so forth and so on because they're judged by their peers to have done the very best they can.

So I'm trying to relate how the same sort of standards would work with parliamentarians. I suppose in my case, I tend to be more of a constituent advocate versus a parliamentarian or a politician. People come into my office with provincial issues, workers' compensation, for example, because my background is health care. I can work my way through the system pretty quickly, but I shouldn't be dealing with it because it's provincial. But if I deal with it, it's done in three days. If I let anybody else deal with it, sometimes it doesn't get done. So I don't know whether that's improper or not. I'm getting really confused.

I would suggest we move on, because I think if anybody has the best handle on it, our witnesses have. If we could just move on, they could probably provide us with some suggested wording that we could discuss at the next meeting. But I can see if everybody is reasonable, it's going to be okay. I would even suggest we send it back to our peers, which is back to the House, but I can see how that's not going to work. In a majority Parliament or something, and partisan politics plays games with a thing....

But anyway, Mr. Chair, my suggestion would be to move on, ask for some suggested wording, and try to tackle it.

[The Chair, Conservative, Scott Reid]

Perhaps that'll be the thing, then. We're asking for quite a bit in writing, but perhaps they can make some suggestions along those lines as well.

Do you have something, Mr. Godin?

[Yvon Godin, NDP, Acadie—Bathurst, NB]

I agree with the suggestion. You have noticed that we feel that there is an issue. I find that Mirabel story much more disturbing. Did the MP do something wrong? What do we do in such a case?

If the MP lobbied a minister regarding a matter in which he is also personally involved, there would have been a problem, but this is not what we mean. If he is merely doing his job as an MP and has done nothing wrong, given the fact that he lives in Montreal, far away from Mirabel.... If this is how you interpret things, we have to change the language.

[The Chair, Conservative, Scott Reid]

As we ask Ms. Mortensen to resume, I'm going to point out that we got up to section 8 in a code that goes up to section 30 or something, does it not? I'm going to suggest we all let them make their comments as much as possible and restrain ourselves from asking questions unless we absolutely have to, or else I am worried that we're going to have to invite our guests back.

Mr. Walsh, yes.

[Rob Walsh]

I have a suggestion, Mr. Chairman, that might assist your concerns regarding the meeting. We will edit our presentation to where we deal with the more substantive ones and when we make our later written presentation to you, we'll put in the other ones that are not quite as complex or vexing.

Would that assist the committee in getting through?

[The Chair, Conservative, Scott Reid]

I think that might be very agreeable, yes.

With that in mind, please carry on, Ms. Mortensen.

[Melanie Mortensen]

Thank you, Mr. Chairman.

There is one more substantive issue at subsection 16(1), which is linked to section 18, and it may be that this was something that was intended.... I'm just going to point out what I'm talking about. Subsection 16(1) indicates: “A Member shall not knowingly be a party to a contract of the Government of Canada or any federal agency or body under which the Member receives a benefit.” There's an amendment suggested. Then section 18 indicates something similar, but it indicates that the partnership in a private corporation that has a party to a contract.... So it's the same issue.

Where the amendment indicates that “unless the Commissioner is of the opinion that the contract is unlikely to affect the Member's obligations under this Code”, we just wanted to draw the committee's attention to the fact that in the Parliament of Canada Act at sections 32 and 33, this is something that affects the eligibility of a member, and so it may be affording the House, through the commissioner, a bit more discretion than is available in the law. While it is of course up to the House to determine how laws apply when it comes to its proceedings, it may have been intended that sections 16 and 18 were to reflect what was in the Parliament of Canada Act and put those into the code, because when this was created some of the other sections in the conflict of interest part of the Parliament of Canada Act were repealed.

I wanted to point that out.

[Rob Walsh]

If I could just put that into other words, this proposal gives the commissioner the discretion to say, you have an interest in a contract with the Government of Canada, but it's okay. In our view, the act doesn't allow that, and I don't think the code can do something that the act doesn't allow.

I think you have to take a second look at doing that, because you appear to be saying that if the commissioner thinks it's okay, notwithstanding the act saying that such contracts prevent eligibility to be members or sit or vote, we're going to let the commissioner say it's okay. I don't know if you'd want to be doing that.

[The Chair, Conservative, Scott Reid]

All right. That's one that will be very helpful to get in writing. As you can imagine, it's a bit complex for us to piece together without having that.

Please carry on.

[Melanie Mortensen]

Thank you, Mr. Chair.

I'm going to move quite a bit ahead to subsection 27(2). This has to do with the conduct of inquiries and the proceedings on the conduct of inquiries.

We have seen how the reports have been issued, and issues that have been raised in the House as a result of interpretation of the code and how the inquiries proceed. We thought it might be helpful to provide a bit more clarity in the section.

Presently it says, “The request shall be in writing and shall identify the alleged non-compliance with this Code and set out the reasonable grounds for the belief that it has not been complied with.” There's an avenue for this code to be taken quite broadly, where it might be open to a commissioner to review the Speaker, for instance. If the Speaker were to permit people to speak about something that occurred and was going on that might be part of an inquiry, that isn't necessarily what this inquiry is meant to do.

Of course, we hope a commissioner would view the code and compliance with the code as being the rules of conduct. But it might provide more assistance if, instead of saying “non-compliance under this code”, it said something along the lines of “non-compliance with the rules of conduct” and the rules of conduct were set out under a subsection or heading in this code. Then it might say, “in interpreting the rules of conduct, the commissioner may look at the principles of the code for guidance”, or something like that.

I think that would help show what the inquiries were meant to really address.

[Rob Walsh]

We as lawyers have a bias in favour of being strict about the ambit of legislative documents--rules-based documents. We don't err on the side of giving them a broad, easy, casual, loosey-goosey interpretation. Lawyers tend to say, “Where is it? If it ain't there, you haven't got it.”

The Ethics Commissioner has to apply rules of conduct, not principles, although there are such things in the code. Principles inform the rules of conduct, but the principles don't stand alone as provisions, the violation of which gives rise to action by the Ethics Commissioner. We have found that the Ethics Commissioner has on occasion failed to make that distinction. Members themselves may seek an inquiry on what they see as an offence under a principle, but it's not necessarily an offence under the rule of conduct.

So we're really saying here that it's better to have a focus on rules of conduct and violations or non-compliance, informed by the principles. The principles do not stand alone as the basis for action by the Ethics Commissioner.

[The Chair, Conservative, Scott Reid]

All right. I see no questions at this point, so let's carry on please, Ms. Mortensen.