[Recorded by Electronic Apparatus]
Monday, October 23, 1995
.1537 
[English]
The Joint Chairman (Mr. Milliken): Order, please. I see a quorum so we are ready to commence our meeting this afternoon.
[Translation]
I have the pleasure to welcome today the honourable Gregory T. Evans, Integrity Commissioner for the Province of Ontario;
[English]
Mr. Derril McLeod, Q.C., the conflicts commissioner for the province of Saskatchewan; Mr. Wayne Mitchell, commissioner of members' interests from the province of Newfoundland; the Hon. Ted Hughes, commissioner of conflict of interest for the province of British Columbia; and Mr. Robert Clark, ethics commissioner for the province of Alberta.
We are really delighted to have so many witnesses here at once. We hope it will save us hours of testimony. We'll cram what we can into the afternoon. We're very much looking forward to what you gentlemen have to say to us.
Mr. Evans was here last week, as you may have heard, and we found his presentation informative and very useful. We expect there will be some comments and possibly some discussion among you that will help the committee in its work.
We thank you for taking the time out of your schedules to do this. I know you're here for a convention. I hope this is a suitable lead-up to the meetings you're about to have, which I think are about to take place.
I understand each of you wishes to make a presentation. I wouldn't presume to set the order, unless you want me to.
Mr. Epp (Elk Island): Everyone may not have a presentation, but we'll be glad to hear from whoever would like to speak, and then members will have questions. So we'll start with Mr. Mitchell.
Mr. D. Wayne Mitchell (Commissioner of Members' Interests, Province of Newfoundland): Thank you. I do have a short presentation. It was circulated in advance for members of the committee. I'll try to be brief.
It gives me great pleasure to appear before hon. members of the Senate and House of Commons as part of your public hearings into the development of a code of conduct for parliamentarians. Furthermore, it's a privilege for me to participate with my commissioner colleagues from across Canada in sharing our experiences with the evolution of ethics for elected representatives of provincial legislatures.
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One of the early actions taken by the Liberal administration of Clyde Wells after the general election of May 3, 1993, was to pass new legislation governing conflict of interest for members of the House of Assembly and ministers of the Crown. This legislation replaced conflict of interest ministers' guidelines that had been in place since 1982.
I was deeply honoured that Premier Wells proposed my appointment as the first commissioner of members' interests. I was even more gratified that this was unanimously approved by the House of Assembly prior to proclamation of the new legislation on June 1, 1993.
The conflict of interest statutory framework for elected provincial representatives in Newfoundland and Labrador specifies standards of conduct for members and ministers to prevent furthering of private interest for themselves and their families from public office, and the appointment of an independent commissioner with powers to adjudicate members' compliance under the act, conduct inquiries and recommend penalties for non-compliance to the House of Assembly. It specifies annual and material change disclosure to the commissioner of all private interests held by members and their families. It deals with public disclosure of defined private interests for members and their families, and it provides for annual reporting to the House of Assembly on the operation of the act in general and the commissioner's office in particular.
In collecting my thoughts for this presentation, I thought I should try to arrange just a couple of aspects from my experience over the last two years that may be relevant to the committee's deliberations.
Legislated conflict of interest standards in Newfoundland establish basic requirements to govern elected representatives in the conduct of their public duties. These standards also provide an objective means for others to assess the separation of public duties from private affairs. Specifically, there are prohibitions under our act, notably in section 22, on influencing decisions; section 23 deals with the use of insider information; section 24 deals with accepting gifts or personal benefits; section 28 deals with the evasion of obligations by sale of interests; section 32 prohibits contracting with government in certain circumstances; and section 33 is a general provision dealing with the participation in decisions that further private interests.
One point I would like to draw from that brief review of the legislation is that, in my respectful view, it may be said that ethics in its truest sense constitutes obedience to these standards without the need for enforcement.
In addition to standards for all members of the House of Assembly to follow, the Newfoundland legislation recognizes the sensitivity of ministerial decision-making by requiring, under section 27, that cabinet ministers refrain from outside business activity; under section 29, that ministerial action ought not to be influenced by employment offers; under section 30, that a waiver be granted by the commissioner for ministers to receive post-employment contracts or benefits within one year of leaving a government department or agency; and under section 33, that ministers withdraw from departmental or cabinet decision-making that may benefit their own private interests.
The second observation I would make to the committee is that it would seem from public scrutiny - at least in the jurisdiction I represent - given to ministerial actions that the rigid adherence to these higher standards of conduct by ministers is indispensable to fostering public credibility in governmental ethics.
Undoubtedly, the most onerous feature of the Newfoundland conflict of interest legislation is the requirement under section 36 for disclosure to the commissioner of all private interests by the member and family. In actual practice, however, the negative reaction about extensive filing has moderated with each successive annual filing. This may reflect greater acceptance of the fact that disclosure is a necessary requirement of serving in public office. It may also suggest a greater appreciation by members of the mutual benefit to be gained from their periodically focusing attention on interrelationships between public duties and private interests.
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The obligation under the Newfoundland conflict of interest legislation for complete disclosure of spousal private interests has been privately criticized by some and publicly challenged in one instance. There is reference to this in my two annual reports to the Newfoundland legislature. In this age of individual rights and freedoms, it is difficult to convince everyone of the need for comprehensive application of conflict of interest standards to the entire family unit. Nevertheless, a select committee of the Newfoundland House of Assembly only recently proposed statutory language to reaffirm coverage of spouses as broadly defined under paragraph 20(g) of our act.
The public disclosure of private interest under section 37, which are subject to the exclusions under section 20, allows for a base level of public scrutiny without excessive intrusion into the private affairs of elected representatives and their families. Members' public disclosure statements are updated each year. In actual practice there have been relatively few requests to view the public disclosure statements of members, but their existence affords the public an opportunity to become informed so that they can draw reasonable conclusions as to the ethical conduct of elected representatives.
The creation of a commissioner of members' interest as an independent officer of the House of Assembly under section 34 ensures accountability under the act. This is achieved through periodic interaction with members to clarify interrelationships between public office and private interests and through advice being given on how to avoid conflict of interest situations.
It has not been necessary for me to recommend punitive measures under section 45 as of this point. Furthermore, through the tabling of annual reports to the House of Assembly on the administration of the act as required under section 35, the issue of ethics of provincial elected representatives is kept in the public domain.
The conflict of interest legislation in Newfoundland only mandates the commissioner to make an objective determination of members' conduct in relation to the standards set in the act. There is no reference in the statute to apparent conflict of interest, as is the case in some other jurisdictions. While I may make suggestions from time to time to enhance public perception of ethical activities by elected officials, it is up to the members themselves to ensure that their actions withstand public scrutiny.
It is encouraging to note that there have been instances where members have imposed higher standards on themselves and their families than are required by the legislation. This is particularly true of the expectations on conduct that the premier of the province has set for conduct of his cabinet ministers.
In summary, I suggest there must be a collective effort to achieve ethics in government. This begins with the rigid adherence by elected representatives to specific standards of conduct, with their actions at all times being guided by the potential reaction of a reasonably informed public. It is assisted by the commissioner giving advice to prevent conflict situations from arising but also having the power to, if necessary, insist on specific compliance and propose penalties for transgressions.
Public office must be open and transparent so that the public has a reasonable opportunity to be informed about circumstances on which they can then base well-founded judgments.
I am pleased to say that in Newfoundland and Labrador there has been a concerted effort to achieve a high standard of ethics in government. This was evidenced by the will of the legislature to pass a statute in 1993 for ethical conduct of elected representatives. It is evidenced by the absence in two annual reports from this commissioner of any reference to significant non-compliance issues or the need for penalties to be imposed. It's also evidenced, I suggest, by little public criticism being voiced about conflict of interest in the two years since the legislation has been in existence.
I thank the committee for this opportunity to share these personal thoughts with you on ethics from my perspective as commissioner of members' interests for Newfoundland and Labrador. Thank you, Mr. Chairman.
The Joint Chairman (Mr. Milliken): Thank you very much, Mr. Mitchell. We appreciate your comments.
Mr. Clark, do you wish to make a statement?
Mr. Robert C. Clark (Ethics Commissioner, Province of Alberta): Mr. Chairman, members of the committee, colleagues, I'm honoured to have the opportunity to speak to the committee this afternoon.
I would like very quickly to try to make six points.
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Our public disclosure situation in the province of Alberta is very similar to the situation that my colleague from Newfoundland has outlined.
To be very frank about it, there was initially a considerable amount of resentment or questioning by some members about the disclosure documents. It should be pointed out that members in Alberta file a disclosure document with me in my role as commissioner, and I sit down with the member and his or her spouse and go over the disclosure document. Following that, a public disclosure document is prepared. This document is sent to the member. Then the member has a look at it before it goes to the clerk's office for public disclosure.
The document that goes to the clerk's office for public disclosure does not deal with the number of shares or the level of financial commitment a member may have. It would say a member has shares in this organization or that company, or it would say a member has a liability at this financial institution or a guarantee at this trust company. The mere fact that the public can see where the member's interests are is deemed to be sufficient.
The other bit of advice I give members dealing with the legislation is basically this, Mr. Chairman. I say that it's one thing to pass the test of the legislation, but I caution members to also use what I call the nose test. Think what you're doing and if you don't mind it appearing on the front page of the Calgary Herald or the Edmonton Journal, then it's quite likely all right to do. The nose test goes somewhat further than the legislation, but I think that advice has served a number of members reasonably well.
The second point, Mr. Chairman, deals with section 41 of our act. It is somewhat unique because a member can come to the commissioner and point out to the commissioner what the member plans to do on a particular investment or a particular change in his or her financial situation. The member can then ask the commissioner to give the member written direction or written advice on how that matter should be handled in keeping with the Canada legislation. Once that information is presented to me, I'm bound by the legislation to respond to the member. If all the information presented to me is complete and a mistake is made in the advice that is given, I laughingly tell people it's my secretary's responsibility, but that isn't right; responsibility rests on the commissioner's shoulders, and properly so because I gave the advice to the member.
When I took on this job of commissioner almost three years ago, I was told by one of the members of the committee that recommended this approach to the Legislative Assembly of Alberta that I should strive to be 90% priest and 10% policeman. I found that approach serves the office well, and I know a number of my colleagues spend a great deal of time taking a similar kind of approach to the matters at hand.
Fourthly, I touch on the approach we use for reporting. Like my colleague from Newfoundland, we report to the Speaker of the Assembly and then my reports are dealt with by the Assembly. From the point of view of budgets and legislative amendments, we report to what's referred to as a legislative officers' committee, the same committee that the ombudsman, the auditor general, the chief electoral officer and the information and privacy commissioner report to. They deal with our budget. They also deal with our requests for changes to the legislation and then they go directly to the legislature on that basis.
I'll conclude my comments, Mr. Chairman, by giving you two examples of situations we've dealt with in Alberta.
Obviously, I think one starts with the point of view that all members are honourable. Under the legislation, a member can ask the commissioner to do an investigation of that member's actions or of another member's actions. In a particular case one of the ministers in the Alberta government asked me to do an investigation of allegations that centred on that minister. It was dealing with the sale of shares in Syncrude Canada Limited. There were stories in the media that the minister had used her influence to give inside information to a company that had acquired shares in Syncrude. This minister's brother was the president of the company that had acquired the shares. The minister asked for an investigation. The investigation was done within a week. I was able to report to the Assembly that not only had the minister not taken part in that matter or breached the act in any way, but the member had gone further than was necessary under the act.
The important thing for members to have understood on that occasion was that the investigation and report immediately stopped the story. It was no longer a news item. I don't think there has been any public discussion of the matter since.
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The last comment I'd make is that within the last year we had a situation where a member from the opposition came to us and said, quite frankly, that he had breached the act. He was a very small businessman. His company, of which he was a direct associate, had done some work for Public Works. The member came to me and asked me to do an investigation. That was done. The member had been very forthright, very upfront about it. The member ended up paying back the profit he'd made on the project to Public Works. The report went to the House. I indicated that he had breached the act but certainly I could see no intent. I recommended there be no sanctions.
The bottom line was that there was one story in the media in Alberta as far as that member was concerned. I think it served to show that in fact this individual was an honourable member.
In conclusion, after three years of the legislation being in effect in Alberta, it covers the 83 members of the Legislative Assembly in Alberta and also 70 senior officials of the province. Those are the deputy ministers and full-time board appointments. The senior officials do not go through the public disclosure portion; they do the private disclosure to the commissioner.
All in all, I would concur with the comments made by my colleague from Newfoundland. The system seems to be operating well in the province of Alberta.
The Joint Chairman (Mr. Milliken): Thank you very much, Mr. Clark. Interesting experience there.
Mr. Hughes, do you have a presentation for us as well?
Mr. E.N. (Ted) Hughes (Commissioner of Conflict of Interest, Province of British Columbia): I have, Chair. I'm going to speak from notes I've made, but there will be some extemporaneous comment.
I am pleased to have the opportunity to appear before the Special Joint Committee on a Code of Conduct for members of Parliament and senators here in Ottawa.
I'll divide my remarks into three segments. First, I'll talk briefly about the British Columbia experience. Second, I'll touch on some other issues I know this committee is interested in. Third, I intend to take a look at where I see the future unfolding in this area, in that I am now well into my final year as the conflict commissioner for British Columbia.
This act in our province was passed in July 1990. I became the acting commissioner on October 1 of that year. The act was fully proclaimed into law on December 1, 1990. My acting appointment was confirmed by the legislature by vote on May 23, 1991, for a five-year term. So I have actually been in office now for in excess of five years, considering the first few months in the acting appointment.
Our statute covers all members of the Legislative Assembly. It makes no distinction insofar as its broad coverage is concerned between members of the executive council and members of the House, but there are some sections that deal solely with the role and position of members of cabinet, such as section 8, which deals with the prohibition against carrying on a business or a profession that would interfere with one's duties as an executive in the executive offices of government.
The three responsibilities I have are not unlike those that have been outlined today by my colleagues from Newfoundland and Alberta: first, disclosure; second, an advisory role; and third, an investigative arm. I will speak briefly about each of those.
Before I do, however, I will say that the position I hold is a half-time one. I'm paid half what the auditor general is, the ombudsman, and the freedom of information or privacy commissioner. They're the other three officers of the House. That arrangement is at my suggestion, because this position time-wise and staff-wise is not nearly as onerous as the positions they carry. I think from an important perspective it's equal to those, but it's not the hub of activity in government that the other three are, particularly when in our jurisdiction my responsibilities are limited to the elected members, unlike in Alberta where senior public servants are covered.
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As for disclosure, the requirements are the same for all 75 members. I will leave with you a set of the forms members are required to fill out on an annual basis. There is a form on which they list their assets, liabilities and sources of income. There's an accompanying form for those who have interests in private corporations.
We also have a system in our jurisdiction where, if a material change takes place in one's financial status over the course of the year, one must fill out a form and file that information with me within 30 days of that change taking place. I have a copy of that form here. I'm happy to leave all of those with you.
I believe I have had the full cooperation of the members throughout my tenure. Perhaps one reason members have very willingly participated in their annual meetings with me and in their completion of the documents is that, differing from some other jurisdictions, the members are not required to fill out dollar figures insofar as their ownership of assets is concerned. They have to indicate where they have assets and what the nature of those assets are, but they haven't had to reveal to me the dollar value of them. I have the opportunity of inquiring, if need be, but I seldom need to because it's the ownership - not the quantum - of the asset or the liability that can trigger the conflict. I think the fact that this doesn't have to be revealed to me has been partly responsible for the cooperation I've had. That includes the cooperation I've had in spousal participation.
The act requires that I have the annual meeting with the member and spouse, if available. For the first time around I've insisted on the availability of the spouse. I've been much more lax in that requirement in my subsequent annual meetings.
My second position is that of adviser, as my colleague from Alberta mentioned. This is used quite extensively by members making requests for an opinion about certain matters. I think it's fair to say that the majority of requests come from ministers, but not always.
It's fair to ask what they are seeking opinions about. The best answer I can give is that they're seeking assurances that they're not running afoul of the various prohibitions set out in the act for something they have in mind.
Chief among those prohibitions is the one in section 2.1 of the act which says:
- A member shall not exercise an official power or perform an official duty or function if the
member has a conflict of interest or an apparent conflict of interest.
I think I'm correct in saying British Columbia is the only jurisdiction that has legislated with respect to an apparent conflict of interest. That definition was taken by the legislature by way of an amendment in 1992, insofar as apparent conflict of interest is concerned, pretty much from the definition of Chief Justice Parker in the Stevens inquiry that was conducted back in the 1980s.
I have not had a problem with the apparent conflict of interest section. I think it's controversial among some of my colleagues. It puts a higher requirement on members insofar as their performance is concerned, but I think I can say it has worked reasonably well.
Other prohibitions in the act are against the use of insider information and influencing others in positions of authority, a prohibition against accepting gifts and benefits, and contracting with government. Members do write to me in my advisory role requesting advice in those areas.
The third hat I wear is with respect to investigative matters. Under the statute, either members of the legislature or members of the public can file an application for an opinion before me where they allege there has been a violation of the act and set forth the reasonable and probable grounds they have for believing that a violation has taken place. It then becomes my responsibility, if I believe they have laid that groundwork, to conduct an investigation and to make a report to the House. Additionally, if I have found someone in breach of the act, it is open to me to recommend a penalty or sanction for the House to take up and impose or not impose as the House may wish.
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I'm pleased to be able to say that in the excess of five years I have been doing this job, I've never had occasion to recommend that a penalty or a sanction be imposed upon any member. I think that speaks well in a number of ways. It's not something I would hesitate to do if I felt the circumstances called for it, but we've been able to operate the system - notwithstanding a number of inquiries that have taken place - without that step having to be necessary.
If there is to be a penalty imposed, it's a penalty to be imposed by the House and certainly not by the commissioner, but it is on the recommendation of the commissioner. The House can accept or reject that recommendation as it wishes, but we've had no experience with that in British Columbia.
There are one or two other issues on which I know you're looking for some indication or guidance based upon experience. One is whether there would be two systems or one system. That is to say, you have the system now where the ethics counsellor deals with senior officials in the Government of Canada. There's no need for the division into two systems in British Columbia because the one has worked reasonably well, but as I say, we do have special provisions regarding members and parliamentary secretaries. The two-system approach could be a very feasible one here in Ottawa for the federal picture, particularly since you have started with the one limited system. I really have nothing else to add on that because that may be the most advantageous way for you to go.
Another question I know has been raised here is whether it should be a statutory system or not - that is, one that is embedded in a statute, as we have at the provincial level. I can say that I don't believe the system in British Columbia would have operated as effectively as it has had it not been for the presence of the statute.
In Ottawa the present code for public office holders, as I understand it, is not akin to the provincial legislation in that regard, in that it is not based on statute. But I know you've heard from our senior colleague, Mr. Wilson, the ethics counsellor here, and he will be in a position, and has been in a position, I am sure, to comment to you on the effectiveness and sufficiency of that system here.
Suffice it to say that in my opinion, the level of effectiveness achieved in British Columbia would not have been possible without a statutory system, backed up with the teeth of enforcement through the investigative process and the availability of the imposition of penalties if required.
As to a question that I believe you have on your list as to who should administer this and whether it should be someone from the inside or outside, I think there are merits either way. I came to the position with experience in government, having been a deputy minister for a number of years, and I think experience in government is a very great asset in knowing how government operates and so on. I had the added advantage of legal training, but I don't see that as being a necessary attribute because it can always be purchased for a fee. I'm sure some of you would agree with me there.
The remaining part of this presentation deals with what I referred to at the outset as how I see the future unfolding. I move into that by asking the question of why we have existing legislation in the provinces and the territories and the regulatory system in Ottawa for public office holders. Why are these systems in place?
It is my view that a nation is no stronger than its ethical and moral principles, and the ultimate strength of those ethical and moral principles is in the hands of those citizens democratically elected to lead our country in the provinces, the territories and our municipalities. The cornerstone that underpins sound moral and ethical principles and values is the integrity, honour and trustworthiness of our democratically elected officials at all levels of government.
I believe conflict of interest legislation, which has mushroomed across this country at the provincial level in the last two to seven years, has been a response to shore up that cornerstone lest those elected to public office be tempted to put self-interest ahead of the public good. That has likely also been the motivating factor behind the existing Ottawa code for public office holders, but also the establishment of this committee to look at parliamentarians and ministers and parliamentary secretaries in the elected House of Commons.
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The conflict of interest legislation that has resulted in British Columbia - and I believe elsewhere in Canada - has been substantially successful in accomplishing what was expected of it by those legislators who enacted it. Therefore, insofar as matters of conflict of interest are concerned, I advocate the continuance of it the way it is, with the requirements as they are, particularly with the availability of enforcement.
However, what I have come realize as I have done this job over a five-year period is that conflict of interest is only one aspect, one component if you like, of honour, trust, integrity and morality in public service. What I believe should occur is for existing legislation, at least in British Columbia, to embrace the wider gamut of honour, trust and integrity in public service in the same way as legislation has embraced that concept of conflict of interest.
It is my present expectation to file my 1996 annual report early in the new year and to recommend, as I have alluded to modestly in the past but more forcefully in this next report, to advocate the inclusion in our statute of sections that are statutory in some other parts of the country. Let me give you an example.
In the conflict of interest legislation of the Northwest Territories, a commission on which my colleague the Hon. Greg Evans and I have the honour to serve, there is a provision that says that each member shall:
- perform his or her duties of office and arrange his or her private affairs in such a manner as to
maintain public confidence and trust in the integrity, objectivity and impartiality of the
member....
- Public office holders shall act with honesty and uphold the highest ethical standards so that
public confidence and trust in the integrity, objectivity and impartiality of government are
conserved and enhanced.
I commend my colleague from Ontario for the leadership he has shown in bringing about these changes with their new statute. I appreciate that they have moved to include, as you were told last week, Ontario parliamentary convention into their statute. I personally favour the inclusion of a more definitive statement, like those I've just mentioned to you that exist in the Northwest Territories and in the code here. Nonetheless, they all moved in the same direction.
If what I advocate were to come to pass, the British Columbia act would, like the one in Ontario, have to be renamed the ``integrity'' or ``ethics'' act and the commissioner reconstituted, as in Ontario, as the ``integrity commissioner'', as my colleague Mr. Evans is, or as in Alberta, where my colleague Mr. Clark is known as the ``ethics commissioner''.
If this kind of addition were to be made to the statute, the result, I believe, would be the implementation of the highest possible standard through incorporating in the one statute British Columbia's conflict of interest requirements and the federal code requirements, backed by an effective investigative and enforcement mechanism.
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As I see it, one of the major questions for you is what to recommend with respect to enforcement. I hope what I've had to say about how our system operates today will have been of some use to you, as well as the other remarks I have made. If we can be of further assistance in clarification by answering questions, I'm sure we'll all be pleased to play that role.
Thank you.
The Joint Chairman (Mr. Milliken): Thank you very much, Mr. Hughes. Thank you for the documents you are leaving with the committee. I'm sure we'll find them helpful.
Mr. McLeod.
Mr. Derril G. McLeod, Q.C. (Information and Privacy Commissioner for Saskatchewan and Conflict of Interest Commissioner for Saskatchewan): Mr. Chairman, I wish to make a few remarks. I shall try to be brief.
The scheme of the Saskatchewan act is substantially the same as those of the other jurisdictions, and there's no need for me to go over that again.
The disclosure requirements are a little more stringent than those of B.C. The private disclosure statements require the amount to be disclosed, but the public disclosure statements I prepare that are available for public inspection do not disclose the value of assets, the amounts of liabilities or anything of that nature. In fact, they are very much more limited.
This is a new thing for me. I've only been in this position now for a year and a half. During that time I've had the opportunity to meet all of the members and their spouses in the review process.
I am satisfied, I'm pleased to advise you, that the introduction of this type of legislation in Saskatchewan - and I suspect anywhere else - is not due to the sudden outbreak of moral turpitude among hon. members or a rash of conflicts of interest. I think it's important to remember that this type of legislation is designed primarily for the benefit of the public, and not for the benefit of members. It has a secondary role and that is, of course, the direct benefit to members. In its operation it will enhance the reputation of these institutions, the Senate and the House of Commons, the legislatures, for probity and integrity.
You must remember that all too often conflicts of interest are more perceived than real. I've just concluded my first investigation in Saskatchewan of an allegation of conflict of interest on the part of the Minister of Social Services. There was a perception of conflict. It only took me ten days to prepare and file a report that satisfied everyone that there was no conflict of interest and no breach of the Member Conflict of Interest Act.
The other thing that has to be borne in mind is that these provisions are not unlike, and indeed are analogous to, codes of ethics that are in place and adopted by all sorts of institutions and professions. Universities, hospitals, the legal profession, the medical profession and the nursing profession all have them, and they're all there for the same reason. They're there to protect the public and to ensure that public trust in those institutions is maintained, because it has to be at a very high level. I think the same reasoning applies here.
The next thing I want to point out is that under these acts the institutions, be they the legislatures or the House of Commons, retain their complete supremacy or sovereignty with respect to any final decision in any given case. In the acts I've looked at there is only one exception to that. The Saskatchewan act, the Ontario act and I think the B.C. act each have an offence penalty enforceable before a provincial court judge with respect to violation of sections pertaining to employment by a member who has ceased to be a minister or a member.
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I have some difficulty with that. I had occasion to be asked by a minister who was resigning her position for advice on what she could do and what she couldn't do. I had to end up telling her I thought what she was proposing to do was probably okay, but the act gives jurisdiction over that to a provincial court judge. I'm not at all sure why that should be so, and I'm not convinced that I see any good reason for it.
Of course there is always a temptation to want to go into too much detail in these things. Too much detail is usually a bad idea because the specific excludes everything else. In this inquiry I just finished dealing with, I had occasion to decide whether the minister was in violation of section 5 of the Saskatchewan act. The Saskatchewan act says:
- A member shall not use his or her office to seek to influence a decision made by another person
to further the member's private interest, his or her family's private interest or the private interest
of an associate.
The Ontario act, for example, has a very sensible section. In fact, the Ontario act is in many respects a model act and well worth studying by anyone about to adopt legislation in this area.
The final comment I have to make is regarding the use and appointment of outsiders - commissioners, like this lot - to interpret and advise with respect to the act. Now remember, the final decision is always with the House or the Senate or the legislature. In my respectful submission, I believe it's probably wise to have someone outside the House or the institution. The fact that there are five of us here with different backgrounds, and I think all appointed in the same fashion by the unanimous vote of our legislatures, probably indicates that it is possible after all to find people to do this job, people in whom the members can have confidence, who can deal with things that otherwise might fester and create problems in a fairly summary fashion and get the matters disposed of.
The Joint Chairman (Mr. Milliken): Thank you, Mr. McLeod.
Mr. Evans, do you wish to say anything today or do you consider your brief before us?
Mr. Gregory Thomas Evans (Integrity Commissioner, Province of Ontario): Every time I'm asked that I take advantage of it.
The Joint Chairman (Mr. Milliken): That's fine.
Mr. Evans: I have left with the members a copy of the annual report which, when you take time, and I hope you will, contains some editorial comment and some criticism. I figured I was entitled to make comments after a period of time in this office. Then it has questions and answers that have been made anonymous, which are very helpful to the constituency staffs.
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I've also left with you a copy of the new integrity act that was passed at the last session but was proclaimed only on October 6. I also left with the co-chairman Hansard reports on the passage of the act and also on the passage of the proclamation. The purpose of leaving those copies from Hansard was to indicate the manner in which this act came into being.
We didn't get very far with the administration of justice committee. We had three different reports and it was not of very much help. So I asked the then premier, Bob Rae, if he would consider asking the leaders of the other two parties to appoint one person. It didn't have to be a member; in fact, we had one member, who is now the attorney general, but the other two were lawyers. We worked together for a period of time together with my executive assistant, Lynne Harris, and we spent a lot of time coming up with a proposed act.
The three members who had been selected by the three parties went back to a committee of their caucus - I understand sometimes four or five - and they kind of sold the ideas there, or got ideas from them, and then a larger group and finally the whole caucus were aware of what we were doing. So when it came up for passage it went through without any difficulty.
I think I would recommend that method, that you start off with a small group and sell it to your respective caucuses. It gives you an opportunity by people who are not too partisan in their approach to these things, if I can use that term, because integrity is not the sole property of any one party. They really worked well. We had lots of criticism, we had lots of objections, but I think as a result of that we ironed them out and came up with what I think was a much better act than we had before.
We are now proceeding to educate the members and the staffs of the members. They will all receive copies of the act as soon as we can get them out of the Queen's printer, or whoever does it in Ontario. We've already met with the constituency staffs of one party - I think there were about 250 there - and explained to them what this was all about and how it would help them. As a result we've certainly been getting lots of information, lots of requests for information. We handle that, I think, quite expeditiously and the members believe that to be the situation. But we're getting more.
After that meeting we were flooded for a few days. Faxes were flying in and phone calls, but it really works well if the members know they can come there. In a previous administration many did not come and they were the ones who got into trouble. So I tell them to come and ask for advice. If I give the wrong advice it's my neck, but if you don't come and you get into difficulty, then it's your neck.
My purpose, as I see it there, is to protect the public, but in so doing you're going to protect the members. You have to balance that out. I tell the members that if they follow the rules, then I'm their friend. If they don't, I'm not a very good friend because then it has to be investigated.
We deal only with actual conflicts. That's a very objective finding. If you're going to deal with these perceived conflicts, I think you're in difficulty because those are subjective. Some people are suspicious, some are very critical, and therefore you may have more complaints coming in than you need.
.1630
We also handle complaints only from the members or the executive or the House itself, the Assembly. But if anybody calls up, a member of the public, and wants to lay a complaint, I ask them if they know their member. If not, I'll tell them where there are members in the surrounding constituencies. And since they are usually members of the opposition, they will gladly accept the complaint so they can harass the government. There is no problem in getting a public complaint into our office if it is valid.
I think too that when we get into the matter of these complaints, they should be screened by somebody in the caucus. I think I said the other day that there's always one loose cannon, maybe more. But if a complaint has no merit and it's thrown out, it reflects badly on the individual making it, on the party he or she represents, and on the legislature itself.
You know, people attack institutions today. They're attacking Parliament, they're attacking legislators, they're attacking municipal people, they're attacking judges and courts and so forth. Very rarely do they ever offer any constructive criticism. But when you ask them who they mean, they say, ``Well, not my member'' or ``Not the judge I appeared before but the other one'' - nebulous things like that. This is why I think this type of legislation is essential if you're big business. Government is big business. Business people find it necessary and it's a growing industry. If the need were not there, there wouldn't be the growth, and I can assure you that there is a growth. This is a growth industry.
I'm sure all the members and my colleagues here are all ready, willing and eager to answer any questions you may have. I appreciate the opportunity of being invited here. If I can answer any questions, I will be glad to do so.
The Joint Chairman (Mr. Milliken): Thank you, Mr. Evans.
I have one question before I open it up, which I might put to all the panellists. In the work you do, each of you has the opportunity and the obligation to investigate complaints, and then you have different powers. Without going into all those different powers, what I would like to know is this: are the bulk of the complaints you receive levelled against members of the cabinet, or are a disproportionate number of them levelled against members of cabinet and the parliamentary secretaries, in other words what we would describe as office holders? Do you detect any pattern in the complaints?
Mr. Evans: I would say cabinet.
Mr. Hughes: I would agree. In British Columbia that is also the experience, in the main. Not entirely, but perhaps 80%.
Mr. Clark: I would say 60/40, with cabinet getting 60% of them. In essence, though, we've handled very few complaints over the three years, when you get down to finding if there's substance or not.
Mr. Mitchell: In Newfoundland there are few complaints. Of the few there have been, it's mostly in the cabinet decision-making interface that they arise, although there have been some affecting members of the legislature.
Mr. McLeod: I've only had one. He was a cabinet minister.
The Joint Chairman (Mr. Milliken): On my list I have Senator Gauthier.
Senator Gauthier (Ontario): Thank you, Mr. Co-chair.
Welcome to Ottawa and all the amenities. I'm happy to see you're holding your meeting in Ottawa. It helps the tourist industry here in my community. I'm from Ottawa, as you well understand, and I'm a bit of a parochial type when it comes to promoting my area. So welcome.
Having said that, I've a bit of a problem with the English and the French understanding of the term ``code of conduct'' in English and en français, on dit code d'éthique, code of ethics.
.1635
I'm of the opinion - and I think most of you mentioned it - that integrity makes more sense, or a commissioner of integrity, because it encompasses a wider definition than a strict code of conduct, which I take it means good conduct. I guess when you say ``code of conduct'' you underline the word ``good'', which is not there.
I think it was Mr. McLeod who said he thinks ``ethics commissioner'' is also an acceptable term. Did you mention integrity and ethics...Ontario having the term ``integrity''?
I agree with you people. I think there is a distinction to be made here between a strict code of ethics and a code of conduct and a code of integrity. A code of conduct may be the code that will try to restore some public confidence in politicians. I know better than that - it won't; I don't care how many codes of conduct we adopt.
We have a Parliament of Canada Act - I take it you're all familiar with the act - which contains an awful lot of things dealing with conflict of interest, public perceptions, such as expenditures of public funds by members of Parliament and senators. Most of the complaints we've had over the last twenty years I've been here have been about that - the expenditure of public funds by members of Parliament and how it has been done, whether for partisan reasons or self-promotion or whatever.
We don't have a commissioner of integrity here. We have a commissioner of ethics, who handles the ministerial...or office holders. But we've had more misuse and abuse here, at least allegedly, of public funds under the budget that members of Parliament have at their disposal.
I want to ask you a question. Does every one of the members in your legislature have a budget he administers, and if so, have you had any complaints on that? Are the complaints mostly to do with the way he or she administers the budget he or she has, or are they about something else?
Mr. Evans: We don't have anything to do with their budgets.
Senator Gauthier: Who handles that?
Mr. Evans: Management does, our board of internal economy.
Senator Gauthier: Is it the same for all the other legislatures?
Mr. McLeod: There was an amendment in 1994, chapter 40 of the Saskatchewan conflicts act. It permits the commissioner to review the members' use of allowances, disbursements, payments for goods and services, and so on. That comes to the commissioner if a member disagrees with the Speaker's determination in his review of the member's use of his allowances.
Senator Gauthier: In any of the jurisdictions before us today, have any of you had any experience with the administration of public funds by public office holders, in the administrative budgets of their offices, for example? You tell me you're not responsible for that. Have you any knowledge of complaints on that? If you're telling me you never have any complaints about the way a member of your legislature -
Mr. McLeod: There have been some serious problems in Saskatchewan, but they ended up in court on charges of fraud. Members were alleged to have misused their allowances and their budgets.
Senator Gauthier: But nobody else has had any experience with that?
Mr. McLeod: You get into the realm of criminal law when you start talking about the misuse of funds.
Senator Gauthier: I know you do. That's why I'm talking about it. That's why I wanted to bring it up. It's been one of the festering things we've had here in Ottawa.
Mr. Clark: In Alberta we have an arrangement, chaired by the Speaker...legislative officers. They're responsible for members' budgets and the administration of them. My office, when we've had any concern expressed in that area, has simply passed it over to the Speaker.
Senator Gauthier: Has the Speaker ever consulted any of you about his or her...?
Mr. Clark: Unofficially.
Senator Gauthier: Unofficially in your case, Mr. Clark.
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Mr. Hughes: You are entering into an area that has caused me some concern.
When this statute in British Columbia was amended in 1992, a section was added that said: ``At the request of the Lieutenant Governor in Council or the Legislative Assembly, the commissioner may undertake special assignments that he or she considers appropriate.''
This section has been used once. It was used by a unanimous request made of me, immediately after the amendment was made in 1992, to undertake as a special assignment a review of the expenditure of constituency allowance money in the budgets for members' offices. I readily undertook that additional assignment, wrote two interim reports and a final report, and spent several hundred hours on the matter. I made a series of recommendations that went to the management committee of the House, which is chaired by the Speaker.
When I had a complaint from a member two or three months ago about non-compliance with my recommendations, my inquiries revealed that for two and a half years, the members of the management committee had never reviewed my recommendations. They sat there gathering dust for that period of time. I think there's a little scurrying around now, and the Speaker is trying to arrange a meeting.
That's probably one of the things that has prompted me to say some of the things I have said today about the overall integrity issue. That particular assignment had nothing to do with conflict of interest. It had everything to do with the judicious expenditure of taxpayers' money, and a series of recommendations have been tossed aside by the management committee for two and a half years. I'm not very pleased about it, but I am not the master.
Senator Gauthier: Do you believe that provincial legislatures, like the federal one, should ask the commissioner to have a larger role in that - how will I say it? - control or use of effective funds by the members? Should they efficiently pass judgment on the funds that were expended by the members?
Mr. Hughes: I think that if any special requests are made, they should be in an area that has some relationship to the raison d'être of the commissioner's position.
Senator Gauthier: Do you think it should be enlarged to include that in British Columbia, for example?
Mr. Hughes: No, I haven't felt the need for that.
Senator Gauthier: How about the other commissioners? Mr. Clark?
Mr. Clark: I would agree with Mr. Hughes's view. It hasn't become an issue.
Another comment I'd make is that I think it's important that you not hoist too many items on the commissioner's plate if you're going to have the relationship with members that you currently have. You can then continue to have an open back-and-forth exchange with members as the prime focus of the office.
Senator Gauthier: So you don't want to enlarge the statute under which you operate right now to do that.
Mr. Clark: I can think of some areas where you could make some changes, but I don't think it should be in the area of members' compensation or in expenditures -
Senator Gauthier: Does anybody believe we should enlarge it at this time to include that?
Mr. Evans: We've had a few inquiries from the Speaker about certain things, but no, I would not wish that.
Senator Gauthier: Would you leave that to the administration of the House itself?
Mr. Evans: That's right.
Senator Gauthier: Okay, I agree with that.
You said you had some other areas you'd like to perhaps enlarge or include in a more widely encompassing statute. Would you name a few?
I must admit we have a very comprehensive review of all your legislation here. It was done by our research staff and it's very, very good. I'm therefore not going to ask specific questions about B.C. or Alberta, but I just want to know if you'd like to share with us what your views on enlarging your statute would be. What kinds of things would you include?
Mr. Clark: I think that in the period of review likely another two years down the road in Alberta, we'll look at the experience Mr. Evans has had in Ontario and benefit from it. I would see us possibly considering some of those approaches. That, frankly, is what I was considering.
Senator Gauthier: Can I ask all of you a question? Should there be different standards for office holders and for those of us who are not office holders but are members of Parliament?
Mr. Evans: Yes.
Mr. McLeod: Yes.
Mr. Hughes: Yes.
Mr. Clark: Yes.
Mr. Mitchell: Yes.
Senator Gauthier: All of you agree with that. Thank you very much.
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The Joint Chairman (Mr. Milliken): Very good, Senator Gauthier.
Mrs. Brushett.
Mrs. Brushett (Cumberland - Colchester): Thank you, Mr. Chair, and thank you, gentlemen, for coming this afternoon. I have several questions and I'll direct my first one toMr. Mitchell from Newfoundland.
You cite that the ethics standards from the government of Newfoundland are imposed at a higher level by you as a commissioner than they are by the legislature. Could you give us an example of what you have imposed that would be considered higher?
Mr. Mitchell: The standards are set out in legislation in the Newfoundland context. Individual members who may wish to satisfy the test of public scrutiny may subject themselves to higher standards, and I'll give you one example.
Our legislation refers to the family unit as a spouse, minor children or dependent relatives. I can think of several members who, on several issues, chose not to act even though their brothers were involved in an issue of contracting with government or what have you. Those individual members have taken it upon themselves, in the larger context of ethics and integrity and approach, to apply those standards. It wasn't a requirement of the commissioner.
Mrs. Brushett: Thank you very much.
Mr. Hughes, what types of sanctions would you impose prior to the imposing of sanctions by the House or the legislature? Are there any, or are yours only recommendations?
Mr. Hughes: They're only recommendations, and the statute itself spells out the range of those recommendations. Those that are listed are these: the commissioner could recommend that the member be reprimanded, that the member be suspended for a period specified in the report, that the member be fined an amount not exceeding $5,000, or that the member's seat be declared vacant until an election is held in the member's electoral district.
Now as I say, fortunately and as it should be, it's not for the commissioner to say whether any of those should be imposed. He can only recommend. It's for the House to decide by majority vote. I have never had occasion to recommend any of them, but that is the range that the legislature has spelled out for the commissioner.
Mrs. Brushett: I'm not sure I understood this correctly; however, I believe Mr. McLeod indicated that he thought the commissioner should have the end recommendation, but he saw no reason for someone to have the opportunity to go to a provincial judge. Did I understand that correctly?
Mr. McLeod: Yes.
Mrs. Brushett: So having said that, I'll give you a case scenario. If a person was a member of cabinet, was privileged to information that perhaps was not yet public, and he or she then left and went into private business with a private company or was perhaps excluded for one year - I'm not sure which law would fall into place here - and if someone from the public saw this as a very grave conflict or felt the member provided tremendous beneficial information, would it not seem appropriate for this to go before a public inquiry?
Mr. McLeod: The law has a long arm. If you're going to have a statute and a commissioner who is to interpret and apply it, there is no reason whatsoever why it can't be applied, with appropriate provisions, to members who have ceased to be members or to ministers who have ceased to be ministers. The only reason I raised it was that we've all made a point of saying the legislative institutions maintain their control over the whole matter. There is this rather notable exception and I'm not sure that it's justified. It's not a simple matter, but it is something that should be considered, in my respectful submission.
Mrs. Brushett: Do you think the public would agree with your opinion?
Mr. McLeod: I've never been a successful candidate for office.
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Mrs. Brushett: May I ask one more question? I'm not sure I understood some part of the discussion with Mr. Evans from Ontario. I believe you are all appointed by Order in Council -
Mr. Evans: Right.
Mr. Clark: No.
Mrs. Brushett: Did you say no? I ask for some clarification on that. If you were appointed by Order in Council, how could you have unanimous consent from the legislature? That's where I have some difficulty.
Mr. Evans: I should clarify my position. I'm appointed in a unanimous vote of the legislature.
Mrs. Brushett: Thank you. How about you, Mr. McLeod?
Mr. McLeod: It's a unanimous vote of the legislature. Of course you have to get your name up there first. After that it's a unanimous vote of the legislature.
Mr. Hughes: In my case I was appointed acting commissioner by Order in Council, but that was just to get the regime going before the House came into its next session. My name then went before the legislature. The legislation is written so that the appointment shall be made on the motion of the premier, to be concurred in by two-thirds of the members present and voting. My information is that anyone who stayed to vote was in favour, but it isn't necessary that my appointment be unanimous. I am told it was.
Mr. Clark: In my case they ran an advertisement in newspapers across the province. I'd never applied for a job before in my life. I sent something in and they interviewed me. It was a committee of nine members of the Assembly: six from the government, two from the NDP and one from the Liberals. The committee made a unanimous recommendation to the House that I be appointed.
Mr. Mitchell: In my case I was appointed pursuant to subsection 34(2), which says:
- The commissioner shall be appointed by the House of Assembly on the motion of the Premier
following consultation with the Leader of the Official Opposition and representatives of other
registered political parties having representation in the House of Assembly.
Mrs. Brushett: Thank you very much. I wondered how well this unanimous legislative assent agreed with Orders in Council.
The Joint Chairman (Mr. Milliken): It's a pleasure, Mrs. Brushett.
Mr. Epp.
Mr. Epp: I echo the expressions of gratitude for your coming here. I also want to apologize for not being terribly sharp today. I had only about four hours of sleep and I'm really suffering from that.
Senator Gauthier: You don't need any more than that, do you?
Mr. Epp: I usually try to get six.
From time to time in your deliberations do you come across situations that are not covered, yet you get the gut feeling they should be? Do you have the right to recommend to your legislature that there be an amendment to the regulations?
Mr. Hughes: I think it's always possible to have a chat with government about shortcomings one might see. Generally speaking, I don't think any of us have the authority or jurisdiction to go outside what our act says we are there for.
You're quite right. There are times when I think something is not right but it doesn't fall within the legislation. It's not a conflict of interest or an apparent one as those terms are defined in the act, so it's not open to us to go forward with it. The legislature is the master and they've said we can go only so far.
I have a rapport with the members of the House. My office is on the grounds of the legislature. I meet with every one of them at least once a year in private sessions, so I get to know them well. I think I can fairly say that I have the opportunity of making an approach at any time to anyone I feel I would like to. I would be surprised if my colleagues didn't have the same kind of arrangement.
Mr. Clark: That's subsection 42(1) of our act, entitled ``General advice and recommendations''. I do attempt to keep a file on issues that might fit into that category. Then when I meet with the premier and the leader of the opposition once a year, if there's an issue I feel uncomfortable about which hasn't been resolved, that's the appropriate time to raise it. That's the approach I've taken.
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Mr. Mitchell: In my case, after my first year in operation I presented an annual report to the legislature wherein I identified a number of provisions in the act that in my view were either inadequate or ambiguous to cover conflict of interest situations. The Speaker received this particular annual report and referred those matters to a select committee of the House of Assembly. So I used the vehicle of the annual report to make commentary in that regard to the legislators. Then the legislators in turn would reflect their will back through me through legislative amendments, as they deemed appropriate.
Mr. McLeod: I haven't had occasion to do it yet, but I would follow Mr. Mitchell's procedure. It would go into the annual report. I mentioned earlier that section 5 in the Saskatchewan act, for example, was a disaster. That will go into my annual report.
Mr. Evans: I'd do the same. But we collected all the problems we had when we were revising this act and getting the new act.
At times I probably exercised, certainly before this act, a discretion I may not have had, which was why I was anxious to get a new act in place. You have read the old act. There was great opposition to it and conflict about it on whether you had to declare the value of assets. I took the position that no, I was not going to do it, and I did not do it.
There are other little things that come up. I think you have to ask yourself, is this in the public interest? Does it hurt the public at all? If it doesn't, then I kept it out.
I think I told you last week about somebody who may have support obligations to a child. That's nobody else's business. Nobody seems to know about it or should know about it. I don't see that it should be required to be disclosed.
I have pretty wide discretion in the new act.
Mr. Epp: I have a question about employment. I know many members and senators will have income besides the income they make as legislators. Some of it is investment income. Some of it is earned income. Some of it is earned income that takes very little time. Some of it is earned income that takes a lot of time. Do you recommend we should include in our legislation any restrictions or guidelines in that particular area?
Mr. Evans: In ours we segregate. We say income from governments and income from other sources.
Mr. Epp: It must be declared, but you have no restrictions on how much they can earn.
Mr. Evans: No. I don't think I have any right to say what amount they should make. The whole thing is, though, are they spending more time on business other than the business for which they were elected? If so, then it's up to the House to call them in, not me.
Mr. Epp: Not you?
Mr. Evans: No.
Mr. Clark: Could I respond to that? I come with a little different perspective. I've been a member of the Assembly in Alberta for 21 years, on both the government and the opposition sides. I think that's a decision for the electorate. If they see one of their members spending too much time on his or her businesses and not attending to the constituency, the public will deal with that pretty quickly.
As far as cabinet ministers are concerned, in Alberta they cannot have outside employment, and if they have investments they must be in a blind trust. But I don't think I want to be in the business of telling a member who isn't a member of cabinet what kind of business activities they can be involved in, as long as they don't breach the sections of the act.
Mr. Epp: You're far enough away from us here that you're looking at us from a bird's-eye point of view. What would you recommend, then, we do for accountability for senators? They never face their electorate.
Mr. Evans: They're fortunate.
Some hon. members: Oh, oh!
Mr. Clark: I come from a province that has a rather unique view about the Senate.
Mr. Epp: Yes. Thank you. I think I've made my point on that one.
I have one final -
The Joint Chairman (Mr. Milliken): I thought you were waiting for an answer, Mr. Epp.
Senator Gauthier: I didn't catch it.
Mr. Epp: You didn't catch it? Maybe I'll just spell it out for you directly, then. Maybe they should be elected so they would -
Senator Gauthier: But with Charlottetown, Canadians decided not to do that. That's not my fault.
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Mr. Epp: Well, that's my view.
I would like to come to another thing with respect to the ethics counsellor or commissioner, whatever the title is. You've all indicated how you're selected, but what I'd like to know is whether you value highly your apparent independence. In other words, you are not appointed by the premier of your province; you are selected by the House. You have fewer political ties to your decisions and your investigations.
I guess my bias is coming through here. I've said from the beginning that I would like our own ethics counsellor to be totally unfettered by political ties because of the nature of the investigations that are done. I would like each of you to comment on that if you would, please.
Mr. Clark: He will be our host tomorrow.
Mr. Epp: Be nice to him. He's an honourable man, but I'm saying let's give him the freedom to do his work.
Mr. McLeod: I can tell you what I think. I'm convinced that the commissioner has to be an officer of the legislature rather than anything else, and that he has to enjoy political and other independence and security of tenure, which in my case - and I think typically in these acts - is a five-year appointment by the legislature.
Mr. Hughes: I would have had great difficulty in some of the assignments I've had if I wasn't perceived as being completely and totally independent and impartial.
Mr. Epp: For example, investigating the premier.
Mr. Hughes: It has been my lot, whether I like it or not, to investigate two premiers.
Mr. Epp: That's right, two.
Mr. Hughes: While there are always people who will disagree, with good reason, with the results one reaches, I do believe that my impartiality and being able to do my own thing that I think is right under the existing circumstances, without any political ties of any kind, with independence, has been an invaluable assist to my work being generally accepted. I don't say everyone finds agreement with it, but to my knowledge it has not been challenged in any forum as being done otherwise than impartially and fairly.
Mr. Clark: I would associate myself with Mr. Hughes's remarks. I've been involved in two difficult situations as far as cabinet ministers are concerned. Obviously there are people who wouldn't agree with the conclusions I've come to, but it was important for the public to see that I was independent, that I had a five-year contract with the legislature, and that unless there was cause to remove me, that wouldn't happen.
Mr. Mitchell: I take very seriously the unanimous resolution wherein I was appointed. It seems to me that one has to enjoy the confidence of the full legislature to carry that out. I'm happy not to have the constraints of being with one side or the other in a House appointment. Being an officer of the legislature has helped me; it is the only way I feel I could perform and enjoy that confidence of the legislature.
Mr. Evans: It is essential that you be independent, and that decision should be made at the time when you're appointed. If you don't think the person is suitable, then he shouldn't be appointed.
When I was being sounded out, if that's the right term for it - I was told, anyway - I was just finishing 25 years in the Supreme Court and this was something new. The former Lieutenant-Governor, John Aird, had been acting and handing out instructions and guidelines for a short period of time. I understand there was some suggestion that one party, not the government party at that time, wanted the member to be a woman and younger. I couldn't do much about either, as I indicated to them. Then I was appointed. The one who was objecting later became premier and he reappointed me, so I guess it was satisfactory.
.1705
But if you're not independent and you don't feel independent, you shouldn't take the job.
The Joint Chairman (Mr. Milliken): Mr. Malhi.
Mr. Malhi (Bramalea - Gore - Malton): In your opinion are there some kinds of sponsored travel the legislator should be precluded from taking, or is public disclosure sufficient? What kinds of details do you think should be contained in the disclosure?
Mr. Clark: The public should be able to see where members have their interests, from the standpoint of both assets and liabilities. In Alberta the public could then go to the clerk's office and see where that member's interests are and they can judge, knowing the member's interests, whether or not the member is acting, in our case, within the Conflicts of Interest Act. That's my sense of the information the public should see.
Initially in our province there was great concern amongst some members that all sorts of pressure would be put on people, that stories about members would be passed on. Now it's almost a non-event when we file the disclosure documents in the clerk's office.
Mr. Mitchell: To follow up on Mr. Clark's point, one of the first issues with our new legislation when it came about in 1993 was a phobia that elected representatives had about public disclosure. We've worked jointly on this over the last couple of years to satisfy the act and provide a reasonable balance between what they tell me the public needs to know...without feeding curiosity seekers and providing too much intrusion. I am not aware of any complaint from any one of our 52 legislators, at this stage, about anything that's been put on the public record or the way in which it's done. It still provides the public an opportunity to come in and look at base information they can then make reasonable decisions on.
Mr. Hughes: I will just add this. It might be of some interest to you. I've been in office...I was going to say on the eve of two provincial elections - certainly on the eve of one, and in due course we're going to have another one. On the last occasion, and in recent weeks, I've had members who were considering seeking a nomination for a political party coming from all political parties and asking me, what are the requirements? What are the standards? What do I have to meet? I'm really considering this, but my family wants to know and I want to know.
I've valued the opportunity to explain to them what the requirements are. I think it's fair to say that when we're through, they don't find it as formidable as they thought it was before they ever came in to see me. In the days preceding the last election, I don't think there was anyone who came to see me who declined to run as a candidate for that reason.
That's a service I think all our offices perform. It has been a useful one in letting people know what's expected of them.
Mr. McLeod: Our act requires full disclosure, but it doesn't have to be detailed. That's in the private disclosure portion. In the public disclosure document it's very limited. There's not much information in there except the basic information any reasonable person would need to determine where a member's interests lie. That's all.
Mr. Evans: Private disclosure under the old act was pretty onerous, I thought. We have cut that down considerably. The public disclosure is pretty dull reading, I would think. It does not show very much.
.1710
The members are becoming more accustomed to coming in. I've survived three different governments, three different parties, and I've been reappointed, so I assume they're satisfied. We don't get too many complaints.
Some have little serious concerns. If they come in...I used to put down the names of the children. One lady came in and was very upset that somebody might steal her children. That had never occurred to me. As I said, with nine of them, nobody ever took one of mine. But we eliminated that by just putting a number there: one, two, three, whatever it is.
When you talk with them, you get to know them pretty well. Mine is eight years, so.... I really think as long as you satisfy yourself that the public interest is protected, that's what you should be doing, not invading a person's privacy more than you have to.
The Joint Chairman (Mr. Milliken): I missed the answer to the question that was asked, though, which was whether you require disclosure of travel by members. If a member accepts a trip from somebody, do they have to disclose it?
Mr. Clark: If the value of the trip is over $200, then they have to disclose it.
The Joint Chairman (Mr. Milliken): They have to disclose that?
Mr. Clark: Yes, if it's given as a gift.
Mr. Mitchell: It's $500 in the Newfoundland situation.
The Joint Chairman (Mr. Milliken): Ms Beaumier.
Ms Beaumier (Brampton): I think most of my concerns and questions have been answered. There was just one thing I was interested in. Mr. Hughes referred to apparent conflict of interest. What do you consider an apparent conflict of interest?
Mr. Hughes: When our present premier was in opposition, he said if and when he came to power - and he indeed did come to power - he was going to make this the toughest conflict of interest legislation in the country. One of the cornerstones of that commitment was the placement in the statute of the definition of apparent conflict of interest. It says this:
- For the purposes of this Act, a member has an apparent conflict of interest where there is a
reasonable perception, which a reasonably well informed person could properly have, that the
member's ability to exercise an official power or perform an official duty or function must have
been affected by his or her private interest.
I've had to apply it, and it is subjective in many respects, but that's the way the legislation is. I would have had considerably less work to do over the last three years had that amendment not been made. I would have had considerably less work to do had the amendment not been added in 1992 allowing members of the public to make complaints.
I share my colleague Evans's point of view that.... I never asked for that amendment. I didn't object to it, but I never had any problem with having them take their complaints to members of the opposition. I always found that worked well. Now I have many members of the public writing in on subjects that really aren't conflict problems when you analyse them, but I try to take as many pains as I can to explain to them why they aren't, or to ferret them out.
But certainly you've asked a reasonable question about apparent conflict of interest. That's what it is. The definition, as I indicated in my remarks, was pretty much taken from a definition laid out by Chief Justice Parker in the Sinclair Stevens inquiry.
The Joint Chairman (Mr. Milliken): Ms Catterall.
Ms Catterall (Ottawa West): I must apologize for missing a good part of your early presentation.
To follow on that, do any of you see a potential conflict between your role as adviser/counsellor, if you will, to legislators and as investigators? Is it important that those two roles be in the hands of one officer, or should we consider whether they should be separated?
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Mr. Evans: I guess that's always a problem for someone looking at it from outside. You investigate it and then you're the judge of it, and in effect the executioner. I mean that you recommend the penalty.
I have found this. If you get a complaint and you really look at it and ask if it is something really serious, then if it is, I would have an inquiry under the Inquiries Act. In the other cases, I do not feel it's necessary to submit the legislators to it for the amount of money that's involved. Most of them you can deal with. So I haven't had any great concern about that. On the face of it, I realize what it might look like.
Ms Catterall: I guess I'm trying to understand if the role you play as investigator can undermine your relationship as counsellor with the members in any way.
Mr. Evans: You don't get very far along in it really. At least in my own situation, you get the complaint in, you look at it, and you ask if it is going to be a real problem. If it is, then I can do one of two things: I might refer it out to get a legal opinion from somebody else, which I've done, or I might then say this is one where there should be an inquiry.
Ms Catterall: So you put it out of your hands at that point?
Mr. Evans: Well, no. It doesn't get out of my hands because I conduct the inquiry.
Ms Catterall: That's what I wondered, if you ever feel in conducting an inquiry that it is somehow overlapping, in a conflict way, with the role you play as an adviser to members on these issues.
Mr. Evans: To begin with, when you get a complaint coming in, you're not giving any advice. You're getting a complaint about what some other member did, so you look at that. You don't give any advice on that; you just say to yourself, is this a serious one? Does it require me to get away from it by getting a legal opinion elsewhere, or is it serious enough that I should set up an inquiry? I don't think you really get into an overlapping situation.
Mr. Hughes: I don't think I've ever felt undermined, to adopt your term, which I think is a very fair one. But in our act, and I think in some others, there is a section under the section where you give advice and opinions to members. It says that after you've given advice on the questions being put to you,
- If the commissioner determines that a member has not contravened this Act, that determination
is final for all purposes of the Act and any proceeding under the Act, so long as the facts
presented by the member to the commissioner under subsection (1) were accurate and
complete.
That might be of some assistance in answering that question.
Ms Catterall: I have another fairly minor technical question. A couple of you have dollar figures in the legislation; you mentioned $500 for a trip. Is there an automatic escalator clause in there so you don't have to reamend the act every time you want to update it? The $500 that is suitable today might be equivalent to $1,000 four years from now.
Mr. Mitchell: No, there are no escalator clauses in our legislation.
Mr. Hughes: Ours simply works on the basis that anything larger than a $200 gift a member must report to the commissioner, and then they must request advice from the commissioner as to whether they can keep it or not.
Ms Catterall: I think a large part of this discussion has to do with public perception of the honesty of the affected people as opposed to the reality of the honesty in their elected people. Each of you has operated under a piece of legislation that has been in place for some time. Are you aware of any change in public opinion because there is legislation on conflict or conduct?
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Mr. Evans: It's pretty hard to tell what it does to deter them. I don't read about as many problems in the newspapers as I used to. I think the members are well aware of this.
Mr. McLeod: I think it has an effect. Remember, a lot of the public perception is what you read in the newspapers or hear in the media.
Mr. Evans: That's right.
Mr. McLeod: I had occasion to hand out an opinion a week ago. The press had been making a big deal of it and that was the end of it. Once the press stopped making a great fuss about it, public opinion simmered down as well.
Mr. Clark: I've had some experience with media people asking me whether something is inside or outside the Conflicts of Interest Act. You can't deal with a member's own situation. On one occasion where the media raised the story, the member came to us and I reported to the legislature that the member had acted very honourably. I think that has made some of the overzealous reporters think that they don't want to look too foolish, so it's best that they check their facts a bit more than they may ordinarily have before.
Ms Catterall: If you are going to make a story when there is no story, then you are going to look foolish.
Mr. Clark: The member can ask the commissioner to look at the member's actions.
Ms Catterall: But none of you is aware of any polling that has been done in your jurisdiction to determine whether the existence of a code has affected public opinion.
Mr. Clark: My budget isn't big enough.
Mr. Hughes: There's certainly no polling in British Columbia that I'm aware of. But I believe from what one hears that there is a measure of satisfaction on the part of the knowledgeable public that such an office is in place.
Ms Catterall: Can we go to one more technical question? I'm more concerned about the members of Parliament as opposed to ministers and parliamentary secretaries, because I think that area is fairly well in hand. All of you have a requirement that members withdraw from their legislative functions around an issue in which their personal interests are involved. Can you describe what withdrawing from legislative functions means?
Mr. Evans: Let's suppose the member is a teacher or the spouse is a teacher and something is coming up in the legislature about teachers. I see no reason why he cannot comment in the legislature. I think he's entitled to vote too, because the issue encompasses so many people; there's no need to withdraw. On the other hand, if a very small group is involved I think he should withdraw from it.
Ms Catterall: Let me give you a scenario. Instead of being a teacher, the spouse is a board member of a board of education. There's a report before the House to amalgamate boards, which may directly affect the position her husband holds on that board. That would be a little more direct.
Mr. Evans: Yes.
Ms Catterall: You talk about two ways of withdrawing: you can withdraw from speaking on legislation and from voting on legislation. What about private meetings with ministers to try to influence their decision on a contract? Is that also part of the legislative function you would say is off limits?
Mr. Evans: Yes.
Ms Catterall: So you would include lobbying, committee involvement and caucus involvement. You define it very broadly, then.
Mr. Evans: Yes.
Could I just make one additional comment? In the example you use, as long as all school boards across the province are being treated exactly the same the member wouldn't have a conflict. It could be in the teaching profession or in the legal profession. But if it's a very detailed amendment that might affect a small group within the legal profession and that member would stand to benefit, my advice to that member would be that he or she should not take part in the discussion in caucus or in the House, or speak on it either. He or she should either stand up in the House and have it noted in Hansard that he or she is not there or have -
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Ms Catterall: - or try to influence other members of the legislature. That's a little more difficult, right?
Mr. Clark: Yes. That's common sense.
Mr. McLeod: These acts use the expression ``member of a broad class''. I have a little trouble with that.
Ms Catterall: Yes, that's difficult.
Mr. McLeod: The word ``broad'' has no business there in my view. You're either a member of a class or you're not. It shouldn't be all that difficult to figure out. You can be a member of an identifiable class and it can be quite a small one, but you can't tie it to numbers specifically.
Ms Catterall: It seems to me the purpose of that is to not have - I think the Ontario municipal conflict says this - an interest in common with the community. It seems to me the purpose is not to paralyze the member in fulfilling his or her duties as an elected representative. Do any of you feel that anybody has come up with a wording that does capture it?
Mr. Evans: As I said, we kicked this around for a while and there were lots of suggestions about what we should have. If you're going to say ``a substantial group'', what does that mean? So we left it alone. In the last one we said ``a broad class''.
Ms Catterall: Are you saying as long as everybody understands what it means, it doesn't really matter what the words are?
Mr. McLeod: For what it's worth, I think if you just said ``a class of persons'' it would probably be adequate. It would get you out of the numbers game.
Mr. Clark: I got myself involved in a situation that was not very good during the last session on that. I gave some advice that was not very good advice. Following the session I asked the two caucuses to get together with me. We came to some consensus as to how to interpret that section of the act. I'd like to say that has worked well, but I just released it to the members so I don't really know. But that's the way we've gone about it.
Ms Catterall: Okay, thank you.
The Joint Chairman (Mr. Milliken): I have two requests for the second round, from Senator Gauthier and Mr. Epp. Maybe each could ask a question.
Senator Gauthier: I want to profit from the presence of our viewers and experts here and ask them five questions. I just want yes or no answers.
I take it you all agree that the code should be statutory rather than a simple resolution of both Houses. Does anybody disagree with that?
Some witnesses: Agreed.
Senator Gauthier: Should we have two officers of Parliament, for example, one for parliamentarians and one for ministers? I understand you have only one class. We have an ethics counsellor right now and we're talking about another person, maybe. Or should we have an independent tribunal to administer both parliamentarian and ministerial obligations under a code of deontology, if I may use that word? I like it better. Does anybody disagree with that?
Mr. Evans: I'm in favour of having one for the Senate and one for the -
Senator Gauthier: I know that; you've told me that. I am asking about one for ministers and one for parliamentarians.
A voice: Oh no, no.
Senator Gauthier: Should we have only one?
Mr. McLeod: Yes.
Senator Gauthier: Who should administer the code, an insider or an outsider? I think some of you made your point that it should be an outsider. Does anybody believe it should be an insider like the Clerk of the House?
Mr. Evans: It depends on the individual.
Mr. McLeod: If the House says this is the guy we want, it's him no matter what he is.
Mr. Evans: I think in Newfoundland you already have an office in the legislature.
Mr. Mitchell: We're in the service.
Senator Gauthier: Do you all agree with that? Yes.
You've all told us you have a system of disclosure. Should our federal system of disclosure make it necessary to add values to that disclosure? In other words, should it be mandatory to have a value attached to your disclosure?
Mr. Clark: Do you mean for private disclosures?
Senator Gauthier: Yes.
Mr. Evans: Yes.
Mr. Hughes: I've had no problem doing my job without that requirement in British Columbia.
Mr. McLeod: It's required in Saskatchewan, but for the life of me I can't see that it's necessary except if the amount is so significant that it will have a bearing on the situation. If somebody has 100 shares in the Ajax fertilizer company, who cares?
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Senator Gauthier: How about you, Mr. Clark? Do you care?
Mr. Clark: I have shares in Petro-Canada.
Mr. Mitchell: We have a financial disclosure.
Senator Gauthier: With the full amount attached to it?
Mr. Mitchell: Yes, the full amount to the commissioner. I've had no difficulty with that and the members have had no difficulty, as long as it stays with the commissioner for the purposes of discussion with the individual member.
Senator Gauthier: When you say full disclosure, it's for the member and his or her spouse?
Mr. Mitchell: In our case it's the member and the member's spouse, minor children, or dependent relatives.
Senator Gauthier: It's the same thing for all of you? Spouses are all involved here?
Mr. Clark: Yes.
Mr. Hughes: Yes.
Senator Gauthier: You didn't to have to deal with John Crosbie's wife then, I guess.
Mr. Evans: Well, I've heard of her.
Mr. McLeod: It's not so bad.
Senator Gauthier: She objected.
The Joint Chairman (Mr. Milliken): Were your questions answered, Senator Gauthier?
Senator Gauthier: Yes.
The Joint Chairman (Mr. Milliken): Mr. Epp, do you have a question?
Mr. Epp: I have one question. We've been told that if we have too much in requirements for disclosure and accountability and all of this, we are going to lose good candidates. Do you agree with that statement?
Mr. Evans: No.
Mr. Clark: No, as long as they know the criteria upfront.
Mr. McLeod: I did my first round of disclosure statements a year ago and I didn't have any trouble with anybody after I explained to them how the thing worked and that there was no need to be worried about being embarrassed by an undue invasion of their personal affairs or exposure to the public and that kind of thing.
Mr. Hughes: I think if we all encourage potential candidates to come talk to us, we'll be able to tell them what the requirements are and, in the main, have them see that they're not so formidable that they should back away.
Mr. Epp: Thank you.
Mr. Evans: At one time or another they're all going to be in the cabinet. The only thing they want to know is what restrictions will be applicable to them when they are in the cabinet.
A voice: Are they all there?
The Joint Chairman (Mr. Milliken): There are usually more.
Mr. Evans: Some didn't get elected.
The Joint Chairman (Mr. Milliken): I want to thank the five witnesses for appearing this afternoon. It's been a pleasure to hear your views, and I think the members have enjoyed the quite frank exchange that's taken place and noted the differences between the various jurisdictions that each of you represents here. I know we've found it very helpful to hear your views and we will no doubt bear them in mind as we work toward a report in this matter. We hope we get one that is acceptable this time.
Unless somebody else has something else to raise, I declare the meeting adjourned.