[Recorded by Electronic Apparatus]
Tuesday, November 19, 1996
.1106 
[English]
The Chairman: Good morning, colleagues. Bienvenue à notre comité.
This morning, pursuant to Standing Order 32(5), we will be considering the report of the ethics counsellor for the fiscal year ending March 31, 1996, pursuant to the Lobbyists Registration Act. The specific issue for us today is consideration of the lobbyists code of conduct.
I've certainly had some familiarity with this bill. I was given the honour of chairing this several years ago - well, it seems several years ago, but I guess it would be only two - and didn't know I'd have the honour of receiving it in another life in this committee.
Welcome, Mr. Wilson, and thank you for coming today. I understand you have a presentation.
Colleagues, I would ask you to make your interventions through the chair. We'll try to keep everybody at five minutes to give you a chance to ask a number of questions back and forth. It would be my intention to have more than one round of questioning.
Mr. Wilson, please begin.
Mr. Howard R. Wilson (Ethics Counsellor of Canada): Thank you very much, Mr. Chair. I'm here avec un collègue du ministère de la Justice, Mr. Pierre Legault.
I am delighted to appear before you today to discuss the draft lobbyists code of conduct. The Lobbyists Registration Act, which was amended in 1995 and proclaimed on January 31, 1996, in section 10 sets out the requirement for the ethics counsellor to develop a lobbyists code of conduct. The legislation requires consultation with interested parties and referral to a committee of the House of Commons before it is published in Canada Gazette.
[Translation]
We have had extensive consultations. The first stage was the circulation of a discussion paper on January 31, 1996 to all registered lobbyists, senators and members of Parliament as well as members of the media, academics and others. The discussion paper was not a draft code. Rather it was designed to set out the elements found in other codes in Canada, the United States and Europe.
The discussion paper noted that most codes start out with a preamble, set out a number of principles and then the detailed rules. What we were looking for were comments on the structure of the code and what specific elements should be included. We received many helpful responses and met directly with a wide range of groups. These consultations allowed us to develop the first draft code which was circulated on August 6, again to a wide number of individuals and organizations. The discussion paper as well as this draft were also available on the Internet through the Industry Canada site.
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We again received many useful comments and met directly with a number of organizations and individuals. The result of this process was the second draft code which is now before you. This presentation to the committee is the last stage in the consultation process. As a result of the comments received this morning, the code will be finalized and published in the Canada Gazette.
[English]
Let me take a few moments to describe to you the structure and content of the code. The preamble introduces the purpose of the code, and places it in its broader context of promoting public trust in the integrity of government decision-making.
We begin with the four concepts as stated in the Lobbyists Registration Act. I think that for the purposes of public debate, it bears repeating these. The Lobbyists Registration Act began, in its preamble, with four concepts: first, that free and open access to government is an important matter of public interest; second, that lobbying public office holders is a legitimate activity; third, that it is desirable that public office holders and the public be able to know who is attempting to influence government; and finally, that a system for the registration of paid lobbyists should not impede free and open access to government.
[Translation]
The principles of which there are three, integrity and honesty, openness and professionalism, are inspirational and represent a moral obligation as distinct from a legal obligation. This is common in many other codes.
In our consultations, we made it clear that investigations for a breach of the code should only occur with respect to the obligations which are set out in the rules. The principles set out, in positive terms, the goals and objectives to be attained without establishing precise standards. They are intended to guide people in making decisions since it would be inconceivable to come up with a rule for every hypothetical situation that could arise. The rules then provide detailed requirements for behaviour for specific situations.
[English]
The rules are the key part. They set out the specific obligations. We have set these out in three categories: transparency, confidentiality, conflict of interest.
It was clear from our examination of other codes and from much of the comment that we received during the consultations that the key rules were those that dealt with accurate information, confidentiality and the avoidance of conflict.
One of the more controversial elements was that a number of lobbyists - particularly some consultant lobbyists - felt that the provisions on competing interests and disclosure, rules 7 and 8 particularly, should not be in a government-developed code. Their view was that these matters relating to the lobbyists, because they deal with the lobbyist-client relationship - . A number felt that the code itself should only have rules related to the lobbyist and public office holder relationship. In other words, they believed that this code should not deal at all with the lobbyist-client relationship. We disagree.
We believe the question of conflict is critically important to public office holders. Let me use the example of a lawyer. When a lawyer calls a public official and says that he or she represents a client, this is generally accepted by the public office holder. Why? Because we know that a lawyer is subject to considerable sanctions for misrepresentation. It is our view that the question of credentials or bona fides for consultant lobbyists are equally important.
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The question then is who is this individual who is sitting in front of a public office holder? What are their credentials?
It is our belief that if a lobbyist is in conflict this will affect substantively the relationship and how the public office holder can deal with the lobbyist. Our view equally is that it is not for the public office holder to decide what constitutes a conflict; it is for the clients of the lobbyist.
Our examination of many codes shows that the only way by which conflicts are dealt with is through disclosure. This is true of the legal codes as well as those for other professions. Therefore, although there was strong disagreement on the part of a number within the lobbying community, we have retained as a central part of this code rule number eight.
[Translation]
Another important rule is that related to the protection of confidential information. We have approached this the way it is handled for lawyers.
Lastly, we have a provision on fees and expenses. A number of people have expressed concern about such a provision. They question both the need for this provision and the legal capacity of the government to include it. I would welcome the committee's comments. It is not certain that this is a relevant matter for a public office holder.
[English]
Let me conclude by saying that the code is designed to assure the public that lobbyists carry out their business with the highest standard of integrity. It's designed to help foster a better public understanding of lobbyists' activities and to complement the transparency provided by the Lobbyists Registration Act. Specifically, the code, designed in the context that lobbying is a legitimate activity, provides guidance to lobbyists in their relationships with public office holders.
[Translation]
With respect to future steps, the Office of the Ethics Counsellor will take steps to disseminate the code widely and offer advice on its application. We will implement a process for the handling of complaints and investigations in a fair manner. Lastly, we will use the annual report to Parliament, required by the Act, to communicate broadly the rulings and advice provided.
[English]
Thank you, Mr. Chairman. I'm happy to take any questions.
The Chairman: Thank you, Mr. Wilson.
There have been a couple of drafts. Mr. Wilson, can I ask you, for my colleagues' information, whether the November 14 draft is the most recent one?
Mr. Wilson: Yes.
The Chairman: And it's called the second draft. There were two drafts floating around, and I just want to make sure of that.
Dr. Pagtakhan, you're first.
Mr. Pagtakhan (Winnipeg North): Thank you, Mr. Chair, and thank you, Mr. Wilson.
Could you indicate what is the fundamental difference between the words ``must'' and ``shall'', which I have observed have been changed in a number of provisions from the first to the second draft? When did you decide that it shall be ``must'' and then that it shall retain ``shall''?
Mr. Wilson: There was in fact no complicated reason behind that. The idea originally was that the rules would be obligatory. Some were drafted with the use of the word ``must'', some with the word ``shall''. The meaning was intended to be the same.
As we were producing this draft you now have before you we decided to be consistent in the terminology, so the word ``shall'' is used throughout.
Mr. Pagtakhan: Under the section of confidentiality, a clause under confidentiality was deleted in the second draft. The clause is ``is requested that the Ethics Counsellor's Office for the purpose of applying this code''. Why was that clause deleted in the second draft?
Mr. Wilson: It was our view that this was in fact redundant.
The Lobbyists Registration Act gives considerable powers to the ethics counsellor in terms of an investigation. It requires that if there's a reasonable belief that the code has been breached then there shall be an investigation. The powers within the act are full subpoena powers and are very considerable. It was our belief in drafting this that we could then talk in terms of only two situations, consent from the client or disclosure as required by law.
.1120
Mr. Pagtakhan: On item 6 under confidentiality, the phrase ``to their own financial or other advantage'' was deleted. I thought that this is significant. While I can accept that the two terms ``shall'' and ``must'' are synonymous, and I accept your explanation that the effectiveness of the Office of the Ethics Counsellor has not been diminished by deleting that clause, this third one, under insider information - why was that phrase deleted?
Mr. Wilson: This was an issue that came up from quite a number of people with whom we consulted. They raised the question to make a distinction between using insider information to the disadvantage of a client, which is a moral issue in that if you have a relationship, whether as a consultant lobbyist who has been hired for a certain purpose or whether you're an employee of a corporation or an employee of an organization, you have an expectation that you will protect confidential information. You certainly would not use it to the disadvantage of your client or your employer. We thought that this moral requirement was important.
In regard to this other question about ``or to use insider information to their own financial or other advantage'', this was not necessarily to be seen as being to the disadvantage of a client or employer. What we did not intend, I think, in drafting the code in August was that we were treading into an area where I don't think this code has any business. That is, if a lobbyist on the basis of being hired decides that their new client has a very exciting product or a very exciting future, this would inadvertently say that they are prevented from investing in that company by buying shares on the stock exchange. We could find no parallel in any code respecting lawyers whereby they are prevented from doing the same.
So we thought that, yes, there are laws in this country that say you cannot use insider information for certain matters. This applies particularly to directors and senior officers of corporations, and it may apply to others. However, we did not see this as being a legitimate extension of this code's scope.
Mr. Pagtakhan: Of the some 3,000 you consulted, plus or minus, was there any group or individual who requested to be included in that consultation whose request somehow had to be declined?
Mr. Wilson: Not to my knowledge. We provided the documentation very widely. We accepted communications and comments by the Internet as well as in written form. I don't believe we excluded anybody.
Mr. Pagtakhan: Thank you, Mr. Wilson.
The Chairman: Thank you, Dr. Pagtakhan.
[Translation]
Mr. Laurin.
Mr. Laurin (Joliette): Mr. Wilson, in a recent Hill Times article, the draft code was criticized because it will not prevent lobbyists from advising both the government and a private-sector client on the same issue, or, it is believed, from passing on insider information to other clients.
I will use the example of family trusts. The government was criticized in the House for appointing consultant-lobbyists who at the same time advised the government as well as certain persons who used family trusts as a tax shelter. How do you respond to these criticisms?
Mr. Wilson: On the one hand, lobbyists must not divulge confidential information without their clients' consent.
Moreover, the issue of competing interests is dealt with in rule 7 under the heading "conflicts of interest". Lobbyists shall not represent conflicting or competing interests without the consent of those whose interests are involved. This is a very important issue. Lobbyists must take steps to avoid conflicts of this nature. This is a obligation on their part.
Mr. Laurin: How can the Code's provisions prevent conflicts of this nature?
.1125
Mr. Wilson: As I just said, the Code establishes rules to protect confidential information. It states the following:
- Lobbyists shall not represent conflicting or competing interests without the consent of those
whose interests are involved.
Mr. Wilson: I do not know of any firm advising both the government and a private-sector client on the same issue without the consent of the two parties involved. The conflict rule sets out the general context in which such a situation could arise. If the government feels that the consultation and advice it receives from lobbyists does not create a conflict with other clients and if the latter have no problem with the government also being a client, then there really is no problem.
Mr. Laurin: In your opinion, shouldn't there be a rule prohibiting an individual from advising two clients on the same issue? What assurances do we have that the recommendations made by this individual will be completely objective, even if he has the consent of the two clients involved? We are human beings. Consultants advising two clients at the same time are also human beings. How can they advise them without taking into account competing interests? Shouldn't the code of conduct prohibit a lobbyist from advising two persons at the same time when competing interests are involved?
Mr. Wilson: The problem lies with the definition of conflict. In a forum such as this, I would imagine that everyone agrees as to what constitutes a specific conflict. I reviewed the procedure followed in other codes to determine whether or not a conflict exists. In each case, the codes allowed for an exception. If the client is satisfied that the persons are providing proper advice, then in my view, that's as far as the code should go. Your question is relevant, but it is up to the clients to settle the issue.
Mr. Laurin: I would have liked to discuss this issue further, but I'm concerned that we won't have enough time for a second round of questions. Therefore, I will move on to the next question.
Section 10.3(1) of the Lobbyists' Registration Act stipulates that individuals who are required to file a return must comply with the code. However, section 10.3(2) states that the Criminal Code does not apply to breaches of the code of conduct. What are the implications of these two sections? Has any provision been made for penalties? Given that the Criminal Code does not apply to breaches of the code of conduct, how can someone who has breached the code be penalized?
.1130
I'm referring here to section 10.3(1) and 10.3(2).
Mr. Wilson: Parliament has decided that the code will not be a statutory instrument for the purposes of the Statutory Instruments Act, as stipulated in the section 10.2(4). As you indicated, pursuant to section 10.3, lobbyists are required to comply with the code and the Criminal Code does not apply. There is no mention of criminal sanctions. Parliament has decided that the only outcome of the investigation would be the publication of the report submitted to it. This is the only other aspect of the act which provides for criminal sanctions in respect of registered lobbyists. Parliament has decreed that pursuant to the code, only a public report would be submitted to Parliament. That is what the committee decided.
Mr. Laurin: Therefore, the code makes no provision for any kind of penalty whatsoever?
Mr. Wilson: None whatsoever.
The Chairman: I see. Thank you.
[English]
Mr. Strahl, please.
Mr. Strahl (Fraser Valley East): Thank you.
Mr. Wilson, just so I know, who's your boss? Who do you report to? Where do you get a pay cheque from?
The Chairman: It's the taxpayers, the same ones who pay us.
Mr. Strahl: Who do you report to? Who's your boss?
Mr. Wilson: I'm a public servant in the Office of the Ethics Counsellor, which is funded by the Department of Industry. With respect to the conflict of interest code for public office holders, which applies to ministers, I report through the Clerk of the Privy Council to the Prime Minister.
This piece of legislation sets out considerable independent powers, which was intended by Parliament. With respect to this, I have an obligation to develop a code and later offer advice on the code, but also be able to carry out investigations.
My pay cheque comes from the Government of Canada.
Mr. Strahl: So in this lobbyists code of conduct, you'll report to Parliament. You'll table a report in Parliament?
Mr. Wilson: I have a requirement to do that annually, yes.
Mr. Strahl: We have the second draft of the lobbyists code of conduct, and I take it you're also in charge of this conflict of interest for public office holders.
Mr. Wilson: That's right.
Mr. Strahl: I'm just wondering how that dovetails. There is no conflict between the two? For instance, what you prescribe for public office holders here is not in any way contradicted or somehow a problem meshing with the lobbyists code of conduct?
Mr. Wilson: No. The code of conduct for public office holders is a code that applies to ministers, secretaries of state, parliamentary secretaries, the political staff in ministers' offices, and essentially all Governor in Council appointees. That would include deputy ministers and the heads and members of various agencies and tribunals and the heads of crown corporations. But in fact it only deals with the obligations of public office holders in that sense.
This code is going to apply then to lobbyists, those who are in fact lobbying. In the second to last paragraph of our preamble, we have language that was intended to put the two in the same context. It says:
- To this end, public office holders, when they deal with the public and with lobbyists, are
required to honour the standards set out for them in their own codes of conduct.
- That one is an important one.
I have a copy of the code of conduct set out for public office holders. When you were interviewed by Neil McDonald on CBC, you said this was the only code of conduct you deal with, that there is no other code of conduct.
.1135
Is there any code of conduct for cabinet ministers other than the code of conduct set out for public office holders? The Prime Minister talks about a code of conduct for his ministers that is second to none, higher than all, and all the rest of that. You know what's gone on in the House. We've been trying to get from the Prime Minister whether there is another set of ethical guidelines over and above this.
The Chairman: Excuse me. Colleagues, I've been listening carefully and trying to give you some latitude on this particular draft code of conduct. The witness can answer, but I'll just throw in a caution that if possible, our time should be spent specifically on this draft code. I know -
Mr. Strahl: It does say, Mr. Chairman, the standards set out for them in their own codes of conduct. I know this one because I've seen it and it's the one held up on TV and so on. So I know this one exists and that it is a code of conduct they are held to. Is there any code of conduct that cabinet ministers are held to other than this ``conflict of interest and post-employment code for public office holders''? Is there another code of conduct that cabinet ministers are held to that is different or in addition to this book?
Mr. Wilson: First, the sense of codes in this draft refers to the fact that there is another code, which is public and applies to public servants. We have a code that applies to ministers, which you have in your hand, and there is another code that is similar but not identical, and it applies to public servants. In terms of codes, those are the codes.
Mr. Strahl: If I could just get a straight answer then, is there any code that applies to cabinet ministers in addition to this? I know this one exists. Is there another code?
The Chairman: Mr. Strahl, I don't want to interrupt you, but I guess I am going to have to. I question the relevance of this. If you have another issue that you wish to discuss unrelated to the lobbyists code of conduct, you have lots of time and other fora for that. You're asking about another code. This is about the lobbyists code. The witness has answered that there are two codes. You have asked him two or three different ways.
Your five minutes are up. I'll allow you to put another question and I'll allow the witness to answer. I'm just trying to stay on topic. The lobbyists code is what's before us today.
Mr. Strahl: Mr. Chairman, if you read this book for public office holders, there are guidelines on how to deal with lobbyists in here. These two are linked. We can't separate the two. What I'm trying to get to is whether this is the only thing that applies to cabinet ministers, because there is definitely -
The Chairman: The witness has already answered the question, but go ahead, ask him another question and he'll answer again.
Mr. Strahl: I have asked whether there is an ethics code besides this one that cabinet ministers adhere to and that you administer.
Mr. Wilson: Mr. Chairman, just to avoid any misunderstanding, the Prime Minister spoke to that question in the House a week ago Thursday when he said that we published the conflict of interest and post-employment code for public office holders, we have issued the lobbyists administration, and we have other provisions in legislation.
As far as communications by the Prime Minister to ministers, they are communications within the Privy Council, and I do not release them, but it is not very complicated. I've told ministers that they must adhere to the highest standards of conflict of interest that they can find.
One of the questions that has emerged is the question of dealing with quasi-judicial tribunals. That is not specifically a code, but there were rules in the guidance offered by ministers that has been traditional and privileged that does touch on quasi-judicial.
A couple of years ago, when a matter arose regarding a minister at that time, it was my view and the view of a number of others that those guidelines were inadequate. Subsequently, as is well known, there was a discussion among ministers on those. Those particular guidelines have not been issued, but it is well known publicly that I have a briefing note that I and my office use in our briefings of ministers and their offices, of how they should and must conduct their relationships with quasi-judicial tribunals.
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So in sum, the Prime Minister said that there is a demand on the part of his ministers to have the highest standards of ethical conduct. There are the rules and principles, which he highlighted, set out and in the conflict of interest code, and there are some unpublished rules on dealing with quasi-judicial tribunals.
The Chairman: Thank you.
Madam Dalphond-Guiral, please.
[Translation]
Mrs. Dalphond-Guiral (Laval Centre): My comments and questions relate to your second draft.
I was expecting, rather naively and like most other people, that the code would contain a clear definition of a lobbyist. I would also like to know to whom this code of conduct applies.
My second comment relates to a reference on page 2 to public office holders. I am somewhat surprised to see a code of conduct intended for lobbyists state that public office holders are required, when they deal with the public and with the lobbyists, to honour the standards set out for them in their own codes of conduct. It's as if doctors found references in their own code of conduct to lawyers' standards. I don't see the point here.
As for my first question, I understood clearly from your presentation that the code of conduct seeks to impose a moral obligation as distinct from a legal obligation. Since, as I understand it, this moral obligation should transcend the legal one, does this mean that there is no mechanism to ensure that lobbyists, including those defined earlier, are committed on their honour to complying with the code?
When I served as Opposition Whip, I was required to meet with the clerk and swear an oath to the effect that in the performance of my duties on the Board of Internal Economy, I would uphold the rules of confidentiality. Have you arranged for anything similar in this case? A code is all well and good, but it merely imposes a moral obligation and nothing more. Perhaps you would like to answer that question first.
Mr. Wilson: Thank you. You started off by asking us to define the word ``lobbyist''. The Lobbyists' Registration Act identifies three categories of lobbyists. It would indeed be a good idea to define the word in this particular document.
Secondly, we noted in the preamble that public office holders and ministers must comply with their own codes. Therefore, the lobbyists do have a relationship with public office holders. There are two sides involved, the public office holders and the ministers, and the lobbyists. Two codes apply in an effort to ensure that ethics standards are upheld.
Thirdly, I would like to address the question of the moral versus legal obligation. I stated in my presentation that these principles represent moral obligations and are intended to guide people in making decisions. However, the rules are also legal obligations. Lobbyists must not divulge confidential information. This is a clear obligation on their part. The nine rules are in fact legal obligations.
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The principles are stated more in the context of a moral obligation. Unlike the rules, the principles will not give rise to possible investigations.
Mrs. Dalphond-Guiral: If I understand correctly, the rules represent a legal obligation, which implies that sanctions can be imposed.
Let me continue. The document is not too long and therefore it's smooth going.
I have a question concerning rule 6 under the heading ``confidentiality''. It may seem somewhat innocuous. This particular provision states the following:
- Lobbyists shall not use any confidential or other insider information obtained in the course of
their lobbying activities to the disadvantage of their client, employer or organizations -
Mr. Wilson: I would hope so.
Mrs. Dalphond-Guiral: You would hope so. In my view, insider information -
Mr. Wilson: Rule 5 governs the use of confidential or insider information. It stipulates that lobbyists shall not divulge confidential information unless they have obtained the consent of their client, employer or organization. That is the law. There is an obligation on their part to protect confidential information.
Mrs. Dalphond-Guiral: I'm almost finished. I have one final question.
The Chairman: Please go ahead.
Mrs. Dalphond-Guiral: The ninth rule pertains to improper influence. I have to admit that I find it rather amusing to read that lobbyists must be considerate. Of course, they must not do anything improper. On reading this rule, I'm wondering if an elected official, for example a member or a minister, could say: ``Listen, I'm not really responsible because this lobbyist was so cunning that I got trapped''. The rule in question reads as follows:
- Lobbyists shall not place public office holders in a conflict of interest -
- There is something rather humorous about this. I remind you that elected officials must always
face the music at election time. If they make stupid mistakes, they pay the price. That's clear.
The Chairman: I'm not sure if that needs a reply. Was that a question or a declaration?
[Translation]
Mrs. Dalphond-Guiral: Could you give me an example of one such situation?
[English]
The Chairman: Mr. Wilson, do you wish to reply to that with an example?
[Translation]
Mr. Wilson: Ministers and public office holders must comply with the obligations set out in their own code as they pertain to hospitality among other things. These are subject to the provisions of the Criminal Code. This rule clarifies that lobbyists cannot place public office holders in a conflict of interest. This obligation affects public office holders and ministers as well as lobbyists.
[English]
The Chairman: Mr. Speaker.
Mr. Speaker (Lethbridge): Mr. Wilson, I notice in the August 6, 1996, draft of the lobbyists code of conduct that went out - and I assume that it follows through to the draft act - that as the ethics commissioner you're given responsibility to administer the lobbyists act that we're talking about today. You also must report to the House of Commons after a period of time your findings in terms of whether a lobbyist has breached the ethical code, so you must make a judgment.
What is important here today is to - I'm questioning whether you have the credibility to actually administer this act, and whether you can be responsible for it. I think that's the basic assumption we have to determine here.
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As I look at your office up to this point in time, I see you as a lapdog of the Prime Minister.
Mr. Harb (Ottawa Centre): This is highly irregular.
Mr. Speaker: I see you as the person who reports to the Prime Minister with no guidelines.
Mr. Harb: Mr. Chairman, on a point of order.
The Chairman: There's a point of order being raised.
Mr. Harb: I really take offence to those kinds of statements in this type of a public forum that we are conducting, to put the reputation of anyone on the line. In this particular one, I would like to strike all this from the record and ask this gentleman to withdraw with an apology.
Mr. Chairman, those kinds of statements and comments are highly uncalled for.
Mr. Speaker: I think I should be able to -
Mr. Harb: Mr. Chairman, if this line of questioning is going to continue, I would like to go in camera. I will not tolerate something like this to carry on. We were dealing with the subject matter before us. We'd better stick to the subject matter before us. If there are other items, I think we have another forum, and that's the House of Commons, in order to place those questions.
Mr. Speaker: Mr. Chairman, on the point of order.
The Chairman: On the same point of order, Mrs. Catterall.
Ms Catterall (Ottawa West): Thank you very much. I'm very pleased my colleague from Ottawa Centre has made his interventions.
It's been a longstanding principle that we don't hold public employees up to criticism for carrying out the job they have been given under legislation by Parliament, cabinet or by the Prime Minister. If we have a complaint about what we have done in handing Mr. Wilson the mandate, then it's up to us as parliamentarians to correct it. It's not up to us to sit here and criticize the person for doing the job they have been given by Parliament, to question their ability to do that job, nor to question their integrity in doing that job. I find this offensive, and I will not sit at a meeting where this is happening, Mr. Chair.
The Chairman: On a point of order, Mr. Speaker, please.
Mr. Speaker: Mr. Chairman, on a point of order, will you let me clarify my line of discussion? We are going to ask the ethics commissioner to administer this act. We have to know whether or not he will be given the tools to administer the act. In this act he will be reporting to Parliament, and I agree with that, but there is a step before this.
As I look at it, the ethics commissioner, no matter whether it was Mr. Wilson or someone else or some other political appointee, is being compromised in terms of being able to carry out the mandate we're trying to present. We have to look at the legislation as to whether it should be corrected or not.
The ethics commissioner will be asked to deal with some very high-profile people, whom we all know, such as Marc Lalonde, on behalf of the tobacco industry, Michael Kirby, Ross Parker, former MP -
The Chairman: On a point of order, Mrs. Catterall.
Mr. Speaker: I'm speaking to the point of order. What I'm saying, Mr. Chairman, is that we're asking the ethics commissioner to deal with some very high-profile people.
The point I was going to make, Mr. Chairman, is that every other ethics commissioner in Canada - . I'm very familiar with the ethics commissioner of Alberta; I sat in the legislature with him for years. He has the immunity of being able to report to Parliament without any intervention by a prime minister, a cabinet minister or any other entity of government.
What I'm saying is if we're going to give the ethics commissioner the responsibility for this act, we've got to ask whether he is able to carry out the mandate or not.
The Chairman: Mr. Speaker, I've listened carefully to the point of order, and frankly I was a little offended as your chair to hear the language you used. Perhaps it came out wrong, but certainly the decorum at this table has in my three years - be it brief, and I defer to your seniority in terms of being involved in public life - . Frankly, I found it a little insulting to the witness the way you characterized your question.
You no doubt have some legitimate questions that you wish to put to the witness.
Mr. Speaker: My question, Mr. Chairman, is very straightforward to the witness.
.1155
The Chairman: As your chairman, in terms of trying to maintain some decorum at this table, I would urge that you respect the fact that Parliament has made rules. Parliament has legislation, and we have public servants to administer that legislation. I would urge and caution you that as your chairman I will tolerate a generous discussion of the code, but Mr. Wilson was appointed as the federal government's first ethics counsellor in Canadian history and it was following consultation with the leader of the opposition at that time and the leader of the Reform Party. Mr. Wilson wasn't plucked out of the air. There were consultations in June 1994.
It is a watershed in Canadian history that this government has put forward a commissioner. We're trying to give him the tools to do the job.
As you know, I chaired the first committee on the Lobbyists Registration Act, and it's been a difficult and arduous task as it relates to lobbyists to even come up with the code today. I know your colleague, Mr. Epp, has been very involved with this.
I don't want to use up too much of your time, but I think it's important to make the point that under this code of conduct there has been this consultation.
If you wish to pursue a line of questioning as it relates to the code of conduct, that's fine. I would really ask you to refrain from making any further derogatory personal remarks about the witness.
Mr. Speaker: My question to Mr. Wilson is very straightforward. Under the circumstances, do you feel that you are able to fulfil your mandate as the person responsible for this act without any intervention or interference by a Prime Minister, a minister or any member of Parliament, so the report that comes to us as legislators in the House of Commons is a report of integrity that you want to build into this act that you have recommended to us? Are you convinced that you can do that under the circumstances of your office?
Mr. Wilson: Thank you very much, Mr. Speaker. Let me go to the heart of your question. I considered this to be a fundamental question when I was asked if I could take on these responsibilities. I have a range of responsibilities, some of which we spoke about, matters that relate to the conflict of interest code.
This legislation gives considerable and totally independent powers to the person who holds the position of ethics counsellor insofar as the lobbyists code of conduct is concerned. These powers are considerable. It's my view that they have to be handled with a great deal of concern for the fairness of those who are possibly going to be subject to allegations.
I am putting in place procedures in order that we can deal fairly with complaints that are received about lobbyists' activities. I anticipate that there will be quite a number of those complaints. I would want to have in place a process that will ensure an investigation would only proceed when I believe on reasonable grounds that a person has breached the code.
The act is very clear on this. It states that responsibility rests solely with the ethics counsellor. Once the ethics counsellor has decided there is on reasonable grounds a breach of the code, then there shall be an investigation. That investigation by this legislation must proceed to a conclusion with a report tabled in Parliament. There is no device in this whole piece of legislation that requires anybody else's approval.
These are very major powers. I think they have to be treated with a great deal of concern for public fairness. Once an investigation is launched, it will result in a report. That report will be provided to the registrar general and the registrar general is required by this legislation to table it. There is no discretion at all once the investigation is launched.
We haven't yet got a code. I'm hoping we will be able to ensure there is fairness done to respect public opinion. This is a very important instrument, in my view, to maintain confidence in the integrity of government decision-making. These are very major responsibilities. I'm well aware of the breadth of the powers that reside here. I want to be very conscious that there's a large responsibility resting on my shoulders once this code is published in the Canada Gazette. I want to do this in fairness to all who are going to be inevitably accused.
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I was well aware of this when asked. These are separate powers. They are separate to my responsibilities on the conflict of interest code. They are new and different, but in this respect I have a responsibility to Parliament. Additionally, with respect to these duties, I have to report to Parliament annually. I've done so already, but there wasn't really much substance in that report, since we were still developing the code.
Thank you.
The Chairman: Thank you. Mr. Harb, please.
Mr. Harb: Mr. Wilson, I want to welcome you here and thank you very much for the excellent presentation you have made. I want you to know that your reputation, not only here in Canada but all over the world, is renowned as somebody with a lot of credibility. I have heard from some corridors that you have made presentations where people have called upon your experience from elsewhere and I am delighted to see that has taken place. I want to thank you for your clarity and your sincerity in what you have provided us with today.
In some other industries, such as the Canadian Medical Association and some other professions, they have their own national organizations, their own code of conduct, and so on. Has any lobbying community developed anything like this or are they about to do something like that? If this is the case, how do you see yourself working with that particular body or organization?
Mr. Wilson: There are a number of codes that apply to lobbyists. There is a code that has been developed by the Canadian Society of Association Executives that links a number of associations, such as the chamber of commerce and others. They have developed a code.
There's also an organization that has been in formation for the past year and it also has developed a code. This is the Government Relations Institute of Canada. We consulted very closely with them. They do have their own code, and I believe their membership is growing. I think their interests parallel the purposes of this code. I would anticipate continuing to work closely with them.
Mr. Harb: In the Lobbyists Registration Act I think there's a provision for the act to be updated once every four years. Would the code also contain that kind of provision?
Mr. Wilson: My understanding is that when the Lobbyists Registration Act again goes before Parliament in five years, at that moment Parliament would also be able to take up the code of conduct, which I think is very important. I don't think you can be a magician and create the perfect code on the first draft. I simply don't believe it. We have had lawyers' codes for many years and still members of the profession do not believe they are perfect.
There are two questions. I think experience over the next two or three years with the operation of this will undoubtedly produce ideas of where it can be improved. The other question that might be fair at the time of parliamentary review is that at that moment would it be appropriate for the government to back away from such a code and have it transferred to the responsibility of the lobbying industry itself? This is the case for other professions. I don't think that should be excluded.
I see this as a document that will continue to grow. I made a comment in my opening statement that I hope to use the annual report before Parliament as a means of taking the experience gained of people asking for advice on what to do, rulings that may have come down, and use those as a mechanism in the annual report for more widely disseminating that view. This is what the provincial conflict of interest commissioners have been doing with great value, disguising the identity of a person but having it disseminated more widely.
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Mr. Harb: I want to thank you and your staff on a job very well done, Mr. Wilson.
The Chairman: Thank you, Mr. Harb.
Ms Catterall, please.
Ms Catterall: I have a couple of questions.
One of the basic principles of this code and of the law is transparency of who is influencing government. I'd like to ask who influenced you. There have been some changes from the first draft code. I'd like to know the scope of those you took the initiative to consult with, who contacted you, and what the result was of those consultations in terms of changes to the code. Did you have a balanced consultation?
Mr. Wilson: That certainly was the intent, in that the August code went to that same group of individuals that had received the discussion paper. We are talking in terms of some 3,000-odd organizations and individuals. It includes all senators and members of Parliament, and all registered lobbyists. As well, it included quite a number of interested parties in the media who have an interest in this subject. Democracy Watch, for example, had a view.
I think the changes were reflections on the kinds of comment we received. There was a variety of views on that first draft code.
Ms Catterall: Before we proceed, I am interested to know whether most of your comments came from lobbyists, what might be considered more general-interest groups, or from MPs and senators. If it was primarily from lobbyists, did you take any measures to seek out other opinions?
Mr. Wilson: We got a lot of opinions back. I think it's fair to say that most of the changes were on the basis of comments that had been received that were internal. We felt we were going in some instances in the wrong direction. In some instances they were the result of representations from lobbyists. There was no consensus within that community. We got some very helpful drafting suggestions from a number of lawyers who were supportive of the basic concept of it. They helped us try to find language that was going to be capable of understanding.
There were proposals, however, made by a number of lobbyists, including the view of the Government Relations Institute of Canada, of which I spoke, that we did not accept. A number had argued that on the rules they should be limited solely and exclusively to the relationship between the public office holder and the lobbyist. We were not prepared to agree to that.
Ms Catterall: Can you clarify for me the status of this code? You seem to be saying in your replies to Madam Dalphond-Guiral that it has the effect of law, the force of law, but my understanding is it's not being gazetted as a regulation specifically to ensure that it doesn't have legal effect. If it's to have the force of law, why is it not being gazetted as a regulation?
Mr. Wilson: I'm not a lawyer, so let me turn to Mr. Legault.
Mr. Pierre Legault (Legal Counsel, Industry Canada): You are right in saying that the rules themselves are not regulations. The act clearly states that. At the same time, the act clearly establishes an obligation on the part of lobbyists to respect the terms of the code itself, so as such the code is enforceable under the terms of the act and therefore is an obligation imposed on the lobbyist.
Ms Catterall: I'm still not quite clear why it's not a regulation then. The normal thing is if in legislation you establish the right to set other rules that have to be obeyed under that act, then you make it a regulation.
Mr. Legault: I think I would not want to speak on the decision of Parliament and why they decided it should not be a regulation, but again the act provides for that.
Ms Catterall: Okay. I want to go to what the procedure is now. It's to come to this committee. Are we then to make additional comments that might lead to additional changes, or simply to say that it's a job well done so go off and do your job now, Mr. Wilson?
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Mr. Wilson: This is the last stage of the consultation. What I hope to do following this meeting is to finalize the text and then organize its publication in the Canada Gazette.
Ms Catterall: Let me then raise two specific concerns I have, partly with wording and partly with changes from the earlier draft.
I notice that everywhere it refers to consent, you've taken out the word ``informed''. It seems to me it is an important word to be in there. Lobbyists have to seek the informed consent of their clients to share confidential information, to act for two clients whose interests may appear to be in conflict, for example.
That's not an unusual expression. The term ``informed consent'' implies an obligation on the professional to provide the information to the client or the patient - as it's often used in doctor-patient relationships - on which the patient can properly make a good decision, or the client in this case. Why has that word come out?
Mr. Legault: It was felt in this case the clients of lobbyists are normally sophisticated people, in the sense that they obviously have to give their agreement to work being done for them by the lobbyists and to agree, for instance, on the divulging of confidential information. Therefore we automatically thought they would realize what was happening and would already have in their possession all the information they need and would have full volition to give that consent without mentioning it in the code itself.
Ms Catterall: I think that's maybe a bit of a naive assumption, and let me tell you why. Certainly the large clients of lobbyists are in that position. They have their own lawyers to advise them. Small businesses and non-profit organizations that hire lobbyists to assist them are not necessarily that sophisticated.
Let's face it, you don't need legislation and a code of conduct to tell the people who are already doing things ethically how to do them. It's for those few who perhaps are not doing things ethically that you need this legislation and code of conduct. Can you tell me any compelling reason why ``informed'' should not be in there before ``consent''?
Mr. Wilson: We'll take another good look at this.
Ms Catterall: The second and very last one is ``improper influence''. That's open to all kinds of interpretation, and without any kind of definition it seems to me that it's meaningless.
Mr. Wilson: I will admit we had some difficulties with this.
The earlier draft of August had an additional phrase that said ``or could be reasonably perceived as''. Quite a number of corporate laywers particularly were concerned about that. They did not have trouble with the drafting that you now see in number nine, but they did with ``or could be reasonably perceived as''.
This is, again, the same point you're making. It becomes very open-ended. It was their view that if we were to eliminate that phrase, ``or could be reasonably perceived as'', you reduce the uncertainty and it provides a world in which they were then happy to agree.
Ms Catterall: That's corporate lawyers, but what about average small lobbyists, small clients? As I said, we don't draft the legislation for the corporate lawyers; they know what they're doing. I'm more concerned about the fact that if you don't define what an improper influence is, are you really giving any guideline at all?
Mr. Wilson: You may well have a very important point. Let me just add to it. We looked at some other language that would say something about reasonable hospitality and this sort of question not excluding reasonable hospitality. There was also a question put forward on this issue of improper influence to ask if it was not an obligation on the part of the public office holder to know what the limits are. In other words, you have obligations that are found in the Criminal Code, but you also have obligations that are found in the code for public officeholders and in the code for public servants and any additional guidance that individual departments have made.
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I was a bit troubled about this just in terms of where to strike the balance. If you are making an ordinary offer of hospitality, which may be considered quite normal, if your position within a department is a regulatory one, that might be quite improper. If, on the other hand, your relationship is one of a policy thing, and that hospitality would be seen as a normal continuation of the discussions you're having, then it would perhaps be very appropriate.
There were some lobbyists who wondered about that question. Is there no obligation on the part of the public office holder to say no?
Ms Catterall: I have one final comment. As one who has sat for some time now on a joint committee that's trying to develop a code of conduct for members of Parliament and senators, it's not clear to many of us public office holders, aside from the few who are subject to the code you're talking about.
My own personal guideline is when in doubt, don't. But it's obvious that members of Parliament are looking for a code of conduct to provide exactly that kind of guidance to them. I'm just a little uncomfortable at this being so vague.
The Chairman: Collegues, our time is running out, but I'm trying to give everybody at least one final crack at it. We'll have Mr. Frazer, and then I'll have a wrap-up with three interventions.
Mr. Frazer (Saanich - Gulf Islands): Mr. Wilson, welcome, and thank you for your forthright answers.
Our researcher, Mr. O'Neal, has given us information that says the ethics counsellor would be given sole discretion to determine whether or not there were reasonable grounds to believe that the code has been breached and then to decide whether or not to conduct an investigation. Basically, it's all in your bailiwick, and as you've said before, it's a tremendous responsibility.
In your position as ethics counsellor, you are now, as I see it, wearing two hats, one of which reports directly to the Prime Minister and the other reports to Parliament. I'm not trying to be disrespectful at all, but where do you allocate that priority? Where is your priority to the Prime Minister and where is your priority to Parliament?
Mr. Wilson: When you have these kinds of responsibilities, and particularly a responsibility that is set out in statute, this is a very important obligation that I and my office will have.
I spoke earlier about how we are going to have to have in place a very clear system of how we deal with complaints. Allegations will be made about certain lobbyists that have breached the code. There has to be in place a process by which the office can look at those in order that a judgment can then be brought to bear as to whether or not there is reasonable evidence that this happened. These are going to have a very high priority for me. But when you're dealing with a statute that sets out a process, as this one does, this cannot take a back seat.
Mr. Frazer: May I go a little further down that road? Do you consider that the lobbyists code would apply equally to members of Parliament and to ministers of the crown?
Mr. Wilson: No. This code is designed to apply to those consultant lobbyists who are hired to make representations to those members of companies for whom a significant amount of their time is spent lobbying people such as yourself, or departments, or ministers, or the senior person in associations. That's the definition of a lobbyist. Those are the people to whom this code applies.
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Mr. Frazer: But the way the individual in fact lobbies, whether it be to our lowly backbench MP or to a minister of the crown, is there a difference in the way you would interpret their lobbying?
Mr. Wilson: The lobbyists have an obligation in their registration to indicate what departments they're going to be lobbying. And we'll put in place Parliament - . The lobbyists will choose to lobby those who are going to be most effective in terms of achieving their purposes. They have a requirement to register. This code applies to their activities as lobbyists.
Mr. Frazer: When does the fact that you are conducting an investigation become public? How and when does Parliament become aware that you as the ethics counsellor operating under the lobbyists code of conduct are in fact investigating a lobbyist?
Mr. Wilson: There is a distinction to be made. It says in the legislation that the investigation shall be in private, but it would be my expectation that the fact there was an investigation would be a matter of public knowledge.
Mr. Frazer: When?
Mr. Wilson: At the time it is in fact launched.
Mr. Frazer: How would you go about making that a matter of public knowledge? Would there be an announcement by you?
Mr. Wilson: I think we would have to communicate on an investigation.
The Chairman: I thought you should have to prepare a report of the investigation.
Mr. Frazer: Surely the fact that an investigation is under way should be made known to Parliament.
The Chairman: Perhaps your lawyer, Mr. Wilson - . We're country lawyers here.
Mr. Frazer: It goes back to my previous question that asks about the loyalty to the Prime Minister and to Parliament. The point is that if there is an investigation under the lobbyists code, it should be made known to Parliament if the report is coming to Parliament. If that is not made public, then the ethics counsellor in his wisdom or judgment can say no, this is something for the Prime Minister; Parliament can hear about it.
The Chairman: Your question is valid. As I understand it, it's when do you begin your work under this code?
Mr. Frazer: No, my question is when is Parliament made aware -
The Chairman: That work has commenced pursuant to this - .
Mr. Wilson, do you want to shed some light on that?
Mr. Wilson: I anticipate that we're going to receive complaints. I would want to be able to deal with these privately. I would want to be able to ascertain at least that if an investigation were to be launched, it would be done on very strong facts. So that preliminary part should be handled with a very great degree of discretion in fairness to all involved.
The statute points out that if there is an investigation, it shall be reported to Parliament. That's what the law would then require. My own personal view would be that if you actually - . We're dealing with hypothetical situations, so I would -
Mr. Frazer: No, I'm not; this is a very specific question. This is not hypothetical. I want to know when you advise Parliament. I don't disagree with what you've said. You want hard facts and you know there's something there. But once you've decided this is worthy of conducting an investigation, is that the point at which you tell Parliament you are conducting an investigation?
Mr. Wilson: Let me start backwards. What is certain is that if there is an investigation, there must be a report.
Mr. Frazer: Where does the report go?
Mr. Wilson: The report must go to Parliament.
The Chairman: It's in section 10.
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Mr. Frazer: I mentioned that the gentleman is wearing two hats and therefore has two loyalties. It becomes a matter of discretion here as to where the report goes, to the Prime Minister or to Parliament.
The Chairman: No. If he conducts an investigation, that investigation immediately triggers the requirement for a report under this code. That report automatically goes to Parliament. There is no discretion.
Mr. Frazer: But this is all in one office, Mr. Chairman. Nobody else is involved. This is a one-man show.
The Chairman: At the risk of starting to give evidence myself, I chaired the committee. Coincidentally, our own researcher is sick today, and this researcher happens to have been one of the two researchers who was there with us. I was looking around the table trying to see who was at the committee when we conducted this.
Very specifically, the issue that did come up when we dealt with the Lobbyists Registration Act itself was the fact that Mr. Wilson has been handed by Parliament this responsibility. There's no question that this was an issue. There were a number of issues. We met for weeks and weeks as a subcommittee of the industry committee at the time. There's no question, it was an issue.
But in terms of his specific responsibility, once a complaint has been lodged pursuant to a breach, or a perceived breach, of the code for lobbyists, as I understand it, he is obligated to immediately conduct an investigation.
I suspect, Mr. Wilson, you expect to get perhaps hundreds of complaints. There could be nuisance complaints, but you are still required to looks at the complaints and investigate them. So it could be a serious complaint or it could be a nuisance complaint; nonetheless, the statute will oblige you to report it to Parliament, directly. There's no ``Do not pass go''; it goes to Parliament.
Mr. Frazer: I agree with that, but he himself has said -
The Chairman: He also wears a second hat.
Mr. Frazer: - that up to a certain stage this should be kept private, and I agree with that. Accusing somebody is easy to do, but proving they're wrong is another thing.
If we're just going to the report as being the end thing, then we are loading Mr. Wilson with even more discretionary powers here as to where he goes. Does he go to the Prime Minister?
The Chairman: It's clear in the statute.
Mr. Frazer: What if it involves the minister?
The Chairman: Interestingly, subsection 10(5) was the subject of great debate at our committee. Mr. Epp and Mr. Bellehumeur, together with Mr. Boudria, who sat on three previous - the Holtmann committee in the eighties - . We looked at this issue.
Mr. Wilson, you can refresh my memory, but didn't we, in our committee at first reading, add the findings, conclusions and reasons of the ethics counsellor's conclusions to strengthen the power of the ethics counsellor? So it wasn't, in fact, just to file a report - for example, I investigated Frazer and Associates - but it was the findings, conclusions and the reasons. It gave the ethics counsellor the responsibility, the legal obligation, the statutory obligation, to report it. That was a change from the government bill.
I'm not trying to be partisan here. I'm trying to share with you the historical evolution of this particular provision.
Mr. Frazer: Mr. Wilson, would I be correct in assuming that if you got a complaint and found it to be unfounded there would be no report on it to Parliament, that it's private?
Mr. Wilson: That's correct.
Mr. Frazer: So what you are saying, Mr. Chairman, is not the case. There is a discretionary thing as to whether or not the report comes forward.
All I'd really like to know, Mr. Wilson, is when would Parliament become aware that you are conducting a bona fide investigation?
Mr. Wilson: Okay. You are concerned about whether other people are going to intervene in this.
I think the law as it is written is very clear. I have said that I want to make sure my office has a process in which we can deal fairly with complaints. They may be based on misinformation, they may be meanspirited, but there is a requirement to deal with them fairly.
This law says if I have reasonable grounds to believe a person has breached the code, there shall be an investigation. So one thing is certain: once that point is reached there is a process that must see a report issued. There is no way to stop that. Once that determination has been made there shall be a report.
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What I said was a bit hypothetical was to try to look into the future and say when precisely Parliament might know that an investigation was under way. I'm not sure on that.
Mr. Frazer: Should there be a provision for that?
Mr. Wilson: As I was saying, once there is a determination that there's an investigation, there will be a report.
Mr. Frazer: But should there be a provision in this code to say that at a given point, when you've determined that there is substantial reason for conducting a report -
The Chairman: It's already there. Mr. Frazer, I think I know where you're coming from. He has to lay it before the House within 15 sitting days of receiving it. So it's his investigation. Once he triggers it, once it's called an investigation and it's not just some crazy complaint, once he decides it's an investigation, there shall be a report.
That specific point is one of the things that did come up in our committee. It's not just a report saying yes, I investigated Frazer; the report should have the findings, the conclusions, and the reasons so that it's not just a whitewash, as you might say. His office has given that authority, and it has to be within 15 days.
Separate from that report, within 15 days there's an annual report. The bigger report that we saw as the committee then, as your sub-committee, if I can use that expression, was this ability to report to Parliament so that you remove any perception of political interference, which I think you're alluding to.
Separate from those responsibilities, he does wear a second hat, which may be the source of some of your complaint as I interpret it, as it relates to the Prime Minister, which deals with issues unrelated to this particular act.
Mr. Frazer: Mr. Wilson, it looks like you have some competition for the job up here.
The Chairman: Mr. Laurin.
[Translation]
Mr. Laurin: Mr. Chairman, I'm hesitating between asking my question and asking you to call Mr. Wilson back to testify. I have a number of other questions for him and I have a feeling that we have not exhausted this subject since my colleagues also appear to have more questions for him.
I would like us to focus more on the degree of independence. I would like Mr. Wilson to talk more about the independence he enjoys vis-à-vis the government when it comes to doing his work. The issue is far from clear for me. I would also like to touch further on the question of the powers granted to the ethics councillor. Finally, I would also have a number of other questions for him.
Therefore, I would like us to invite Mr. Wilson to return, perhaps later this week if possible, so that we can continue this discussion.
[English]
The Chairman: Colleagues, just so there's no confusion here, this code - . I'm sorry if I'm doing too much talking, Mr. Frazer, but I kind of feel that in some ways I was there. I was not the glint in the eye of the bill, but I was certainly the chair of the committee that dealt with this. Mr. Bellehumeur, Mr. Epp, and our own colleagues were also part of it.
It was our hope that once we sent Mr. Wilson away and we said okay, you have the lobbyist bill, now you go out and draft the code and consult, that would be done. He did that. As a last thing we asked him to come back to a parliamentary committee and share the code with us. This is nothing to do with independence, nothing to do with some of the other issues that are no doubt controversial and interesting. In terms of relevancy for this code and getting his job done to get this code implemented, that's what we asked him as a committee. We wanted him to come before us and share issues that related to the lobbyist code, as Ms Catterall and Mr. Strahl did.
If you're telling me that you want more time for the code, I don't see any problem with that. I think Mr. Wilson would be available. He's been asking to come to this committee since early September and we've had a scheduling issue. We had legislation. I think that would not be a problem.
[Translation]
Mr. Laurin: Mr. Chairman, I'm sorry but I disagree with you. When we talk about enforcing the code, it is important for us to know who will be responsible for implementing and enforcing it. What means will be available to this individual to carry out this mandate? In my opinion, we have come to the crux of the matter. Our questions for Mr. Wilson should focus on this. He should tell us if he has the necessary tools to implement and enforce the code.
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[English]
The Chairman: Thank you.
Dr. Pagtakhan.
Mr. Pagtakhan: Thank you, Mr. Chair.
In fact, Mr. Wilson said that he has envisaged future steps he would take, including ones dealing with the fashion in which investigations shall take place. I think it's vital that the committee, perhaps before we listen today, sees the set of steps the ethics counsellor would like to take.
What I have found in this code of conduct is if you think of the code of conduct for lawyers, for doctors, or anyone, immediately in that code of conduct there is a provision for discipline, for reprimand, for disbarment or removal of licence. Why is it lacking in this code of conduct?
Mr. Wilson: This was a conscious decision of Parliament that in fact with a code of conduct the only penalty, if you will, that would apply is a report to Parliament on whether or not that lobbyist had breached the code. There was much discussion about this, and it was felt that if in fact there was a report that said the individual had behaved unethically, this would be a sufficient penalty in terms of their future.
That was consciously debated, and at the end there was a consensus within the committee, as I recall, on that point. In other words, at this point you can't disbar a lobbyist. The legal profession can disbar lawyers, but are you in a position to say to somebody that they cannot make representations to the Government of Canada? There is a charter, and the charter does give people the right to communicate and make representations.
What we are saying in this instance of the code is that if you are making representations for pay, you have to register and you will be subject to these rules. If you breach these rules, there could be a report criticizing you tabled in Parliament.
Mr. Pagtakhan: Under the provision of disclosure, there is a sentiment there about advising their clients and obtaining informed consent. In the original draft, it was supposed to be done in writing. I know in medical practice that when you seek a consent for treatment it has to be in writing to preclude any misunderstanding of communications between the two parties. Why, from the first draft to the second draft, was the phrase ``in writing'' deleted? I would think that for greater clarity it is in fact very essential to retain. Would the ethics counsellor please explain?
Mr. Wilson: We've had a comment on the question of whether dropping ``informed'' is really wise and we'll be looking at that seriously.
The question of ``in writing'' was a point that was made to us by a number who said that often in this it is all done on the telephone. They were not objecting to ``informed'', but they felt that the requirement in writing might not in every instance be possible. They were accepting at least that obligation. A number of them were not accepting the obligation and didn't like it in writing either.
We looked at this seriously and felt we may be asking for a requirement that could not be fairly attained in each and every instance - that is, in writing. For instance, if there was a question of a new representation and you're checking with your other clients as to whether there is a problem in their mind with you, as a lobbyist, taking on this new client - . That's the reason we took it out.
Mr. Pagtakhan: Thank you, Mr. Chairman.
The Chairman: Colleagues, we're out of time. Mr. Strahl, you're looking forlorn.
Mr. Strahl: I have a couple of questions.
The Chairman: I'd allow one short last question.
Mr. Strahl: Okay, if I could.
[Translation]
Mr. Laurin: Mr. Chairman, I have a point of order. I wanted to ask a question earlier. I did not ask any questions about the content of the code, in the hopes that you would agree to have us recall Mr. Wilson. I'm still awaiting your answer. I would have asked my questions had I known - If we are planning to call Mr. Wilson back, I will keep my questions for the next meeting.
[English]
The Chairman: I'm in your hands, colleagues. I'm just your chairman.
[Translation]
Mr. Laurin: We would have time this week, Mr. Chairman.
[English]
Mr. Kilger (Stormont - Dundas): I wonder then if we could allow Mr. Strahl and Mr. Laurin to ask their questions today, and then, as I understand it, I don't see that there would be a requirement for Mr. Wilson to come back.
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With respect to the point raised
[Translation]
if we confine our questions to the lobbyists' Code of Conduct, I don't believe it will necessary for us to recall the witness, as Mr. Laurin suggested, if we allow him to answer the latter's questions today.
[English]
The Chairman: Fine.
Mr. Strahl. And then we'll go back to Mr. Laurin's questions.
Mr. Strahl: Is your position an Order in Council appointment? Is it at the pleasure of the Prime Minister or is it for a set period of time?
Mr. Wilson: It's a designation by the Governor in Council.
Mr. Strahl: So is it for a set number of years?
Mr. Wilson: No, just a designation.
Mr. Strahl: So it's at the pleasure of the government or of the Prime Minister then?
Mr. Wilson: Yes.
Mr. Strahl: Okay. The terms are not like those of the Auditor General; it's a different set of terms of employment.
When you're investigating something that involves a lobbyist and a cabinet minister, which is likely going to be the case, somebody is going to say I think that lobbyist is compromising that Prime Minister by his or her lobbying or something they did, you're going to have to investigate on two fronts. You're going to investigate the lobbyist, in terms of asking whether that lobbyist broke the code of conduct, and you're also going to be investigating the cabinet minister in terms of whether the cabinet minister broke an ethical standard. You will then report that to the Prime Minister.
Do you investigate both then? How do you decide what you're going to investigate? If somebody comes along and says he thinks the tobacco industry has Dingwall wrapped around their fingers, and they throw something out at you, you say okay, I'm going to check into this. But you're going to have to check into it for the cabinet and you're going to have to check into it in regard to the lobbyist. How do you decide which you check?
I'm worried that the Prime Minister has placed you in an untenable position. You're going to have to say you're investigating -
The Chairman: You mean Parliament. Parliament put him in that position, if that's what your question is.
Mr. Strahl: Okay.
The Chairman: Mr. Wilson, please reply.
Mr. Wilson: I think that once there is a determination that a person has breached the code, then there shall be an investigation. The power is considerable in this; they are all of the powers of a superior court of record. It is a matter on which I spoke earlier about how important this is. This is a statute. It's going to have to be treated on a basis in which the report at the end of the day fully meets public expectation of fairness and completeness.
Mr. Strahl: Thank you. I'm not sure that really settles it in my mind, but I'll look at the answer. It's a good answer probably.
My last question is what will you do if you find yourself in some kind of a compromising situation? I'm thinking about the big article in The Ottawa Citizen about all the connections the tobacco industry has - all the former chiefs of staff and the cabinet, and there are senators and all the people who are so much an integral part of the political past. What will you do -
Mr. Harb: Mr. Strahl -
Mr. Strahl: No, this is germane.
Mr. Harb: Before you proceed, Mr. Strahl, I want to understand what is the relevance of this, given the fact that it applies to every other public servant under the land.
The Chairman: Put your question, Mr. Strahl.
Mr. Strahl: This is no accusation. This is a situation that could arise. I'm not saying any of these guys, but you have a circle of friends and something comes up. What is the provision in the act or what would you do then to say something like I have to be arm's length from this because this guy coaches my kid's baseball team, so I have to get out of here? What do you do then?
Mr. Wilson: I think it has to be recognized that this kind of a situation may have arisen. I think it is something that may or may not arise. If one's objectivity is going to be under question, it's a very serious matter. I can only look to what guidance I have seen at the provincial level, where, for example, Bob Clark, who is the conflict of interest commissioner in Alberta, in effect took himself out of play on a particular investigation. Why? Because he had had a connection with a part of the organization that was affected by this.
I think that is just going to have to be dealt with when the situation arises.
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Mr. Strahl: Do you have a deputy or somebody who -
Mr. Wilson: We'll have to take a look at how we can do this.
Mr. Strahl: I'm interested in how that would be done, because it may come up. It's always possible.
The Chairman: Thank you.
[Translation]
Please proceed, Mr. Laurin.
Mr. Laurin: Thank you, Mr. Chairman. I would like Mr. Wilson to tell us why he did not think it was a good idea to ask the government to grant the Ethics Counsellor parallel or similar powers to those enjoyed by the Auditor General when it comes performing his duties? What makes you think that you can do a job similar to that of the auditor general when you don't enjoy the same powers as he does?
Mr. Wilson: First of all, this act gives me all the powers that I need. I am completely independent. In actual fact, I must account to Parliament through a reporting process. However, I do have other responsibilities. In fact, the ethics counsellor has additional responsibilities arising from the conflict of interest code which applies to ministers.
Mr. Laurin: Excuse me, Mr. Wilson, but I would like to finish my question so that you can respond properly. You say that this act grants you all the powers you need.
Mr. Wilson: Yes.
Mr. Laurin: However, since this act applies to the ethics counsellor who is under the authority of the prime minister, it is a fairly simple matter to -
Mr. Wilson: [Inaudible - Editor].
Mr. Laurin: The leaders of the opposition parties were consulted about this. I would like to emphasize that -
[English]
The Chairman: Do you have some questions? Please put questions to your witness. No debate.
[Translation]
Mr. Laurin: Mr. Wilson, you claim that the act grants you powers, except that you are powerless when it comes to enforcing the act. You serve at the pleasure or discretion of the Prime Minister. If the Prime Minister doesn't want you to investigate a particular case, he need only remove you from the position of ethics counsellor -
[English]
The Chairman: No, no.
[Translation]
Mr. Laurin: I'm asking Mr. Wilson the question. Is it true that from the moment you no longer hold the title of ethics counsellor, you can no longer enforce the act?
Mr. Wilson: I have been appointed by the Governor in Council to serve as ethics counsellor and to enforce this act. The Governor in Council can change this.
Mr. Laurin: For example, the Auditor General cannot be removed from office.
Mr. Wilson: The act grants me complete independence. I have other responsibilities to assume, including serving as ethics counsellor for the administration of the conflict of interest code which applies to ministers. I am fundamentally oppose to having this responsibility conferred upon a person who holds a parliamentary position. Why? Because in our parliamentary system, government performance is the responsibility of the government and the Prime Minister. I don't think it would be acceptable in our parliamentary system to assign responsibility for conflict of interest to another individual, an unelected one. This is the Prime Minister's area of responsibility. Our parliamentary system makes this abundantly clear. However, as long as I have to fulfil my responsibilities, I will enjoy complete independence when it comes to enforcing the codes.
Mr. Laurin: Mr. Wilson, do you presently feel that you have sufficient independence to speak your mind?
Mr. Wilson: I am totally independent in so far as this act is concerned.
Mr. Laurin: What would you do in the following case? Suppose the Canadian Bankers Association retained the services of a consultant to advise it on proposed amendments to reform the Bank Act. One morning, Finance Minister Martin asks the same consultant to advise him on which amendments to the Bank Act he should accept or reject. The same consultant is working for two clients. All he needs to do is obtain the consent of both parties, that is the bankers and the Minister of Finance, in order to act on behalf of both parties.
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It might be to both parties' advantage to retain the services of the same consultant because the latter will not demand that a provision be included in the act which will be contrary to the other party's interests. He would in fact be looking out for both parties' interests.
How can you claim that you are sufficiently independent to judge whether this type of lobbying breaches the proposed code of conduct?
Mr. Wilson: In my opinion, specific powers are spelled out in this act. If the ethics counsellor has reasonable grounds to believe that a person has breached the code, he calls an investigation. That's very clear.
Mr. Laurin: Yes, if you believe that reasonable grounds exist. I want to know if you have the necessary political independence to judge, without any kind of pressure, whether there are grounds to conduct an investigation? Do you enjoy this level of independence? The Auditor General is free to decide to conduct an investigation into whatever area he likes in any department he wishes. Do you have sufficient autonomy, freedom or independence to determine that in a particular case, an investigation is warranted? That's what I'm concerned about.
Mr. Wilson: I am absolutely confident that I enjoy all the independence I need to carry out my duties in compliance with this act or with the conflict of interest code.
[English]
Mr. Pagtakhan: Mr. Chairman, I'd like to make an observation. The very intensity of the posing of the questions by members of this committee and the confidence with which the witness has answered, declaring the counsellor's independence, is proof of his independence.
An hon. member: Hear, hear. I think you should be a doctor.
[Translation]
Mr. Laurin: I'm sorry, Mr. Chairman, but I disagree. It has to do with the way the witness is answering the question. I wonder if the Prime Minister, from whom he receives his orders, would be happy with a different response. I'm not asking the question, but I'm saying that this is a possibility. I'm sorry -
What we need is someone who would have the powers of the Auditor General, who could act in a transparent manner and who wouldn't owe his job to the government.
[English]
The Chairman: I am sorry. I want to allow one last question from your colleague.
Mr. Langlois, please.
[Translation]
Mr. Langlois (Bellechasse): Mr. Wilson, I believe you stated earlier that your powers were similar to those of a judge of the Superior Court, as provided for under the Constitution Act, 1867. Let's pursue this line of reasoning. A Superior Court judge enjoys broader powers under our Constitution in that he has either total or relative immunity, depending on the circumstances. His immunity is such that his appointment may be revoked only if the House of Commons and the Senate adopt a resolution to this effect.
It is often said that judicial privilege was designed so that when a judge delivers a ruling or opinion, he shouldn't be afraid of displeasing the master. It's not the same thing in your case. You are appointed by Order in Council and your appointment can be revoked at any time. What guarantee do we have that you will not be afraid or startled to find out who is watching you when you investigate a particular individual? That's what concerns me, not your character. I'm not questioning your character, but rather the legal status that you'll have.
Mr. Wilson: At this point in time, as we work on this draft, I'm confident that in my relations with the government, I can exercise the powers that have been given to me.
[English]
The Chairman: Colleagues, on your behalf I want to thank Mr. Wilson.
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Mr. Wilson, this certainly reminds me of the previous meetings we had on the discussion.
I want to tell you that Mr. Wilson has been doing a terrific job under difficult circumstances wearing both hats, and I know this is the decision that Parliament has given him. I want to congratulate him and thank him for the code. I look forward to seeing it published in the Gazette.
We look forward to seeing you sometime in the future.
Mr. Wilson: Thank you very much.
The Chairman: This meeting is adjourned.