:
Good morning. I call this meeting to order.
Welcome to meeting number seven of the House of Commons Standing Committee on Procedure and House Affairs.
The committee is meeting today to continue our review of the conflict of interest code for members.
I would like to remind all participants that no screenshots or photos of your screen are permitted. Given the ongoing pandemic situation, all those attending the meeting in person should be adhering to the public health guidelines. There is no one who is joining us here for the first time, so I will not go onto the details so that I can ensure that we can maximize our time with our guests.
I will ask that all comments and responses be made through the chair. The more that happens, the less I will interrupt, and then we can maximize our time here together.
We have our Clerk, Mr. Charles Robert, as well as our Law Clerk, Mr. Philippe Dufresne, joining us today.
Combined, you will have 10 minutes for your opening comments, so I will pass the floor now to you.
[Translation]
Welcome to the Standing Committee on Procedure and House Affairs.
:
Thank you, Madam Chair.
I'm here today accompanied by Philippe Dufresne, law clerk and parliamentary counsel, to contribute to your committee's review of the conflict of interest code for members.
The House of Commons, as part of its parliamentary privileges, possesses the exclusive right to regulate its own internal affairs. The House's right to discipline its own members for misconduct is closely related to this right and to its authority to maintain the attendance and service of its members.
The conduct of members is regulated in part by the conflict of interest code for members in appendix 1 to the Standing Order of the House. The code has been adopted by the House as an exercise of its exclusive right to govern its internal affairs, as I said.
As well, the Conflict of Interest and Ethics Commissioner carries his functions within the institution of the House of Commons. He enjoys the privileges and immunities of the House and its members when carrying out his duties under the code and the Parliament of Canada Act.
[English]
If the commissioner, following an inquiry under the members' code, concludes that a member has deliberately contravened the conflict of interest obligations set down in the code, the commissioner may recommend appropriate sanctions. The member is then subject to the disciplinary powers of the House, if the House chooses to take action.
The House administration has reviewed the code and we have identified a few procedural and legal elements in it that could be examined and addressed by this committee as part of its comprehensive review.
I will now turn it over to my colleague Philippe Dufresne, who will walk the committee through the House administration's specific recommendations and observations.
:
Thank you, Madam Chair and committee members.
As law clerk and parliamentary counsel to the House of Commons, I'm pleased to be here with the committee members to answer their questions about today's topic.
As the clerk of the House of Commons said, the House administration reviewed the code and identified a few procedural and legal elements that could be examined and addressed by this committee as part of its review.
First, section 28 of the conflict of interest code for members addresses the treatment of a commissioner's inquiry report in the House of Commons.
It's understood that the elements in this section continue to apply notwithstanding a prorogation or dissolution of Parliament. This can raise some questions regarding the timelines set out in the code. Consider in particular the right to make a statement within 10 sitting days of the tabling of an inquiry report and the timeline of 30 sitting days to dispose of the commissioner's report in the chamber.
The committee may want to consider whether these timelines should start anew in a new Parliament. This would provide a member who's the object of a report the opportunity to make a statement in the House to the members who will ultimately vote on the report, not the members of the previous Parliament.
Another related issue is whether and how the provisions of the code could be adjusted to deal with an inquiry report when the member involved is no longer a member at the time that the report is considered in the House. An example would be if the member has stepped down or hasn't been re‑elected following a dissolution.
It should be noted that there are provisions for this issue in the code of conduct for members of the House of Commons: sexual harassment between members.
[English]
Second, there might be an interest in clarifying the process that applies to the House's debates on a commissioner's inquiry report. The code provides that in the case of a report that has found a contravention, the debate on the report is limited to two hours and each member may speak only once and for a maximum of 10 minutes. However, where a commissioner's inquiry report has found no breach of the code, there's no similar time limit, and the code does not address members' participation in the debate, which can have the perhaps unintended consequence of resulting in a longer debate. The committee may wish to look into this issue to assess whether there are good reasons to treat these types of reports differently in the chamber.
Another issue that this committee may wish to look at is the effect of the House's concurrence in a commission's inquiry report that contains recommendations. As set out in the code, the commissioner may recommend appropriate sanctions, in his inquiry report, if he finds that a member has contravened the code. The commissioner may also include general recommendations regarding the code itself.
To avoid the risk of ambiguity as to whether the commissioner's recommendations in a report automatically become orders of the House following concurrence in a report, the committee may wish to examine whether provisions around the effects of adopting of a commissioner’s report ought be clarified.
[Translation]
Finally, sections 31 and 31.1 of the code suggest that documents received by the commissioner in the pursuit of his mandate under the code, including as part of an inquiry, may be subject to production following a court order.
Given that the mandate of the commissioner is rooted in parliamentary privilege and the commissioner enjoys the same privileges of the House in carrying out his duties and functions under the code, the commissioner's documents wouldn't be compellable by courts. These provisions in the code could raise questions about whether the House intended to limit its privileges in this area.
It should be noted that the proceedings of a committee or the Board of Internal Economy examining the conduct of a member are exempted, as parliamentary proceedings, from disclosure to a court or other body and couldn't be used as evidence due to parliamentary privilege. The same should arguably apply to the commissioner's proceedings. If the committee wishes to address this issue, it may want to know the commissioner's perspective and relevant experience.
[English]
Regarding another matter, in October 2018, the commissioner published an advisory opinion on the provision of intern services to members by third parties free of charge. In his opinion, the commissioner stated that interns provided to members free of charge by a third party “are not volunteers” under the conflict of interest code because they receive a stipend or are paid by the organization that placed them. Therefore, the commissioner found that such services constitute a “benefit” under the code, a service or property that is provided without charge or at less than its commercial value, other than a service provided by a volunteer.
In sum the commissioner found that it was not acceptable for members to benefit from the services of interns provided to them free of charge by a third party if: the organization placing the intern is registered to lobby the House; or the member has or may have official dealings with the organization placing the intern now or in the future.
The commissioner added that even if it is acceptable for members to accept the services of interns provided by third party organizations free of charge, they are still required to “report the benefit within 60 days after the start of the internship”.
At its meeting of December 6, 2018, the Board of Internal Economy considered the commissioner’s advisory opinion. In a letter to the commissioner dated December 21, 2018, I indicated that in my opinion the provision of interns by the parliamentary internship program is consistent with the code in accordance with the commissioner’s advisory opinion, provided that the members using such interns are not likely to have official dealings with the organization and they report the service within 60 days after the start of the internship. I confirmed that the House of Commons would therefore continue to work with and support the parliamentary internship program in its mandate.
Given its review, the committee might wish to consider the issue of whether and to what extent the provision of interns to members of Parliament free of charge, as had existed prior to October 2018, ought to be permissible under the code.
Additionally, at his appearance before the committee last week, Commissioner Dion presented six recommendations for possible amendments to the code. While we have no specific comments on the recommendations, we're happy to answer any questions on any implications they might have for members.
Thank you to the committee for the invitation. We're happy to answer any questions you might have.
:
That's excellent. Thank you so much for those opening comments.
I will just remind everyone that within this chamber the verification officer will turn on and off our mikes, and anyone participating online will take care of their own mikes.
We will now enter round one, six-minute rounds, starting with Mr. Barrett, followed by Mr. Turnbull.
[Translation]
Mr. Therrien will be next, followed by Ms. Blaney.
[English]
You have six minutes on the topic of the review of the conflict of interest code for members of Parliament.
Mr. Barrett, the floor is yours.
:
Thanks very much, Madam Chair.
Through you to our witnesses, my thanks to them for appearing today to help us as we work on our review of the code.
Through you, Madam Chair, you mentioned, Mr. Dufresne, that you reviewed the recommendations made by the commissioner last week and didn't have specific recommendations. I'm not sure if you had the opportunity to also observe or review the transcript of our meeting. There was a great deal of discussion on two items in particular, and I'm just wondering if, through the chair, you could give us your interpretation or recommendation.
One is with respect to the definition of “family”. There was a great deal of discussion on the definition of family. If it's extending to first cousins, for example, or to nieces and nephews, we can see that the further you extrapolate, the more challenges that will present for members even in wanting to comply with the spirit of the code and being unable to do so. Also, I think one of the members raised this for their brother; they're not comfortable seeking their brother to disclose their financial dealings or personal interests. By virtue of that, it would be hard to say that the dealings of their brother would impact their ability to do their job. Obviously, more clarity is needed there. Certainly, it needs to be clear.
The other item that I'm wondering if you wanted to speak to if you have a moment is the question of the threshold. There was talk of a threshold of $30 or $50, or of $170 for a painting or up to $200, as to whether it is acceptable or it is not. The context was that of gifts from people who lobby us or in having a ticket to an event or food at an reception. I think it's really important that we have robust rules that ensure the integrity of members and their ability to discharge their duty as parliamentarians, but we need to set members up for success, as people who want to comply with the spirit of the rules and want to be transparent. We don't just want to catch people out. I think that's important.
On the question of the threshold for gifts, and also on the question of family, I would be interested in your advice to the committee, through the chair, based on our discussions to this point.
Through you, Madam Chair, on the issue overall, some of the comments and other remarks that we would make are that in considering any recommendation or any potential change, I think it's important to consider the roles of the members, the nature of the role of members and the implication and impacts of any given increase in obligations and follow-ups that would be required. What will it mean? Will it be practicable? Will it be justified in terms of the concern that it is meant to address?
In terms of the definition of “family members”, the commissioner indicated that the goal was, as I understand it, in part to harmonize with the definition that the Board of Internal Economy has adopted. I think it's important to look at the purpose and the impact of the definition. The Board of Internal Economy's by-law for members is dealing with different things, the same as the Conflict of Interest Act is in dealing with ministers. The board has adopted a broad definition of “immediate family” for the purpose of indicating with whom a member may not contract and who a member may not hire. The obligation is on the member.
In terms of the code, there are other obligations, as you indicated, in terms of disclosure—disclosing the financial assets and so on. A broad definition like that would have different impacts and broader impacts. I understand the commissioner's recommendation, though, to be only with respect to furthering a person's interests. If this committee decides to adopt it, they would have to make sure that it's not expanding that for purposes that would go beyond the needs.
In terms of the gift rule, I think the weighing that you would do as a committee is in establishing: Is this justified? What kind of onus will this put on members in terms of assessing the value? Is it going to be manageable? Is going to be resulting in an obligation that is so great that it is higher than needed?
:
Thank you, Madam Chair.
Thank you to both witnesses for being here today. It's a pleasure to hear from you, as always.
I have numerous questions, as always. I want to start with this one. It relates to section 27 of the current code, “Request for an inquiry”. I see a challenge here. One of my concerns that's come up throughout the last Parliament and continues within this Parliament is that the conflict of interest code seems to be at least vulnerable to being used for political purposes from time to time.
Subsection 27(1) stipulates that a member can request an inquiry. That inquiry has to have some “reasonable grounds” for contravention of the code. When you look at subsection 27(2.1), “No public comment”, it really stipulates that members who have filed for an inquiry or have made a complaint about another member cannot make public comment, but it's really only until 14 days have elapsed.
In fact, although the Ethics Commissioner needs to look at whether or not a complaint or inquiry is merited, whether or not it is reasonable, this allows members of Parliament to, if they so wish, go out into the media and claim that they've made a complaint when there is no reasonable grounds to justify the complaint. This opens up the code, I believe, to being used for political purposes, which is not the spirit of a conflict of interest code. That does not enhance public trust.
I wonder, Mr. Dufresne, whether you think there could be some adjustments made there to prevent the code from being used for political purposes.
:
It's an interesting question. Thank you for asking it.
Madam Chair, I would say, really, the purpose of the code is, in some sense, largely reputational. We put this in place at the insistence, basically, of a public that is increasingly skeptical about the behaviour of parliamentarians. This is a way to, in some sense, respond to that.
It is hard to be sure we're going to be successful. A lot of it really depends—and with respect to the question you were asking of Mr. Dufresne—on voluntary compliance. These are meant to be guideposts to at least establish the minimum boundaries we should observe to better ensure the overall reputation of Parliament itself, not just of the individual members. That's really, I think, the objective of this code. Our success will be measured, really, in our assessment of how, in general terms, the code responds to the public's expectations.
:
Thank you, Madam Chair.
I want to thank both our witnesses for coming to enhance our knowledge.
When we spoke to the Ethics Commissioner—I found grey areas in terms of defining family, friends, and so on—I asked him whether he was under any significant pressure to make a decision. He had to eliminate these grey areas in very concrete situations and decide how to strictly enforce the code.
I was struck by his response. He said that the pressure wasn't on him, but on the members. In other words, we must have an impeccable work ethic. I think that all my colleagues here know that we're under a great deal of pressure to ensure that we do our jobs properly.
For example, you spoke earlier about internships. I could probably recruit a university student, and this internship would be part of their study program. My first instinct would be to check with the commissioner to make sure that I was following the rules.
Would you advise me to do that? Would you advise members to check with the commissioner to make sure that they don't get caught up in anything and end up in an awkward situation? In the event of an uncertain situation, would you advise members to meet with the commissioner to ensure that they act appropriately?
:
In terms of grey areas, I identified a few. My colleagues referred to them earlier.
I looked at the definitions of “family” and “friend,” the activities that we can do and the sources of the gifts. I asked the Ethics Commissioner many questions about the last item and I'm still not convinced that I've understood all the sources.
We're allowed gifts under $30. However, there may be times when the total value of the gifts exceeds that amount, even if the gifts are from different people, but from the same source.
I honestly don't think that this type of situation would happen to me. That said, imagine that a member has a definition in mind when they think of someone whom they don't necessarily consider a friend or a family member. I think that Mr. Barrett was talking about this earlier. Imagine that the definition provided by the Ethics Commissioner shows that the person is considered a friend or family member and the member's reputation is tarnished.
Has there ever been a case where ambiguity in the definitions has resulted in disciplinary action against a member, even if that member didn't act in bad faith?
:
The commissioner is the one who could answer that question. He could check his records to see if he has ever dealt with this kind of situation.
I think there are more specific requirements in the code. For example, one cannot in any way favour one's personal interests or those of a family member. On the other hand, one cannot unduly favour the interests of any other person. The meaning of the term “unduly” is more flexible and therefore leaves more room for ambiguity.
In the case of very specific definitions such as for “family”, the approach to take is to ensure that you are comfortable with and understand these definitions.
In the case of the term “unduly”, one should first rely on one's own judgment, and if in doubt, consult the commissioner's office, stating that one believes one understands that meaning well, but prefers to know the commissioner's opinion for the sake of caution.
:
Thank you, Madam Chair. I appreciate this opportunity.
Through the chair, I'd like to thank both of you for being here today and sharing this with us.
One of the things that I don't know we spend enough time doing, as parliamentarians, is having public discussions about the way we govern ourselves, the rules that are put into place and how they are followed and how important those things are to our democracy.
I really appreciate what some have said about the idea of public trust and how we continue to use the structures that we have in place to engender public trust across the country. That is always something that I'm very interested in talking about.
I have a philosophical question in a sense, Madam Chair, but I'm looking at some of the things we're going through right now. We have processes. Are those processes clear enough to the rest of Canadians? Are there ways whereby we could do better?
There are two different parts. There's this internal part and there's the commissioner's part, but there's an intersection. I wonder if I could have that moment of conversation in the context of public trust, Madam Chair.
One thing said earlier was that some of these are voluntary compliances and some are structures put into place and finding that sort of space in-between....
Thank you so much for this presentation. This is not how my brain normally works, so I apologize in advance if my questions are.... I trust that the members here will clarify.
In one of the points, there was talk about avoiding the risk of ambiguity. It was talking about the commissioner's recommendations, the report automatically becoming orders of the House following a concurrence report, and whether the provisions around the effect of the adoption of the commissioner's report in the House ought to be clarified.
I'm really interested in that. Can you talk about what that ambiguity could be? What could we put forward as a recommendation that might clarify that ambiguity?
I think this is a situation where, if there's been a breach, the commissioner's inquiry may have an individual recommendation in terms of an apology or correction or whatnot. In the same report, there can also be a recommendation that the code be amended because now an issue has been identified that warrants that.
If the House is adopting that recommendation or that report from the commissioner, is the House in fact deciding to change the code? Should that be done automatically by the House adopting the code or should the House want to send it here for discussion?
It's really to clarify that. Is it as simple as saying that you endorse the code and, therefore, whatever is in there becomes an order of the House or are there procedural mechanisms that ought to be there?
To your earlier question, I just want to point out that in the very first section in the code—the purposes section—one of the first ones is to “maintain and enhance public confidence and trust in the integrity of members”. That's exactly what you're referring to and, absolutely, outreach and information go to that.
:
You know your time very well. Thank you, that's excellent.
Before we enter round two, I'm going to give a friendly reminder that comments are addressed through the chair. As two great, strong people of the House, you know how that works. I'm here just trying to maintain some order, as you do, but it's just a part-time gig.
Round two for this committee will be Mr. Vis, followed by Mr. Maloney, Monsieur Therrien, Madam Blaney, Mr. Duncan and Mr. Fergus.
Mr. Vis, the floor is yours for five minutes.
:
Thank you, Madam Chair.
Thank you to Mr. Robert and Mr. Dufresne for being here today.
I have two specific questions. The first is in line with some of the previous questions about the spirit and application of the code.
Mr. Robert, you mentioned earlier that we're incrementally looking at how we apply this code, how we conduct ourselves as public officials in our communities and what the public expects of us. Under the code, there are very strict provisions about reporting income below and above a $10,000 threshold.
Are we going to a place under this code where...? This is a case that could come up quite regularly. Say a member has passive income from investment properties exceeding $10,000. In the public's eye, the public may view that member as being in a conflict of interest with the spirit of the code if they were to vote on any changes to laws related to the taxation of property, capital gains, the appreciation of assets, etc.
Are we going to a place where members may be recusing themselves from certain votes in the House of Commons to be in compliance with the code? I reference this point because it's a common practice at the municipal order of government in Canada.
The Chair: Through the chair.
Mr. Brad Vis: Through you, Madam Chair.
:
Thank you, Madam Chair.
There are obligations in the code, as was indicated, for reporting sources of income, and that is.... With the commissioner, there is a publication of that information. I don't believe that the specific amount is listed, but the general sources of income are.
Then on the notion of voting on matters of general interest, general changes versus the private personal interest, there is that distinction. In situations where it gets close, I think this is one where it would be worthwhile to seek advice and ask if you are here advancing constituents' interest or general evolution of the law? Is this something where I can have such a direct benefit that it's a different type of situation? If you get close to that line, it's a good idea to seek advice.
:
Thank you, Mr. Dufresne, through you, Madam Chair.
Madam Chair, the spirit of my question again is: How does the public perceive us as members of Parliament? That's the basis behind that.
I was very interested, Madam Chair, in the opening testimony of Mr. Dufresne when he referenced the parliamentary internship programme. Let's address the elephant in the room. I'm a former parliamentary intern. I am the token Tory in the program, and I'm very proud to be so. It was one of the best experiences of my life.
It is a unique program. It is the only legislative program in the House of Commons run by the Canadian Political Science Association, but let's not forget that it's funded by some of the biggest organizations that lobby Parliament Hill.
I think that's a good thing, because it gives young people.... Well, I'm still young, but it was 12 years ago or so that I was in the program, and it gave me one of the biggest steps up in my life. When I heard the second point in the opening remarks that the member has or may have official dealings with the organization placing the intern now or in the future, I would be remiss if I didn't raise this point, because it almost seems as if I'm in some type of conflict of interest with the parliamentary internship program, given my past dealings with the Canadian Political Science Association, the social sciences and humanities organization that funds part of the funding through the Political Science Association and all of the requisite organizations that put funds into the pockets of interns.
I would love some clarification on that, both for personal and existential reasons, Madam Chair. Thank you so much.
:
Thank you, Madam Chair.
As you know, I'm not a regular member of this committee. I'm pleased to be here to discuss this very important topic. I only wish I had been here when the commissioner appeared before the committee on this issue.
Through you, I have a number of questions. I thank both of our witnesses for being here today and for what they contribute to Parliament as a whole.
Mr. Robert, I'm glad that you mentioned that Parliament has the exclusive right to regulate its own internal affairs, because in my view, many of these six recommendations are an overreach and intended to usurp that rule. However, I will leave that there.
The focus of my questions is this: I view the office of the integrity commissioner as being there to help members of Parliament. Unfortunately, as Mr. Turnbull suggested earlier, it has been weaponized politically and we've seen that time and time again.
As you quite rightly point out, the purpose of the code is largely reputational. I want to address this “protect” versus “prosecute”.
Do you agree with me, first of all, that the job of the integrity commissioner and that office is to help members of Parliament?
In the code of conduct, in terms of conflict of interest, even if you're a former member, you can still have a report debated about you, if the complaint was against you and you can have a finding of the House as a former member, and that's happened.
In terms of the code of conduct for sexual harassment, it's explicitly provided that if the respondent to a complaint is no longer a member, then the matter will stop. You won't have an order of the House about condemning a former member. If you are still a member, yes, you're under the authority of the House, but if you're not, in the code for sexual harassment, it will stop.
That's a question for this committee. Is this an approach that you want to adopt for conflict of interest, or would you want to change the approach in the code on sexual harassment and say that we want to keep that? But certainly, the more recent sexual harassment code has said that for a former member, it will be off limits.
:
Thank you, Madam Chair.
Thank you, both, for being here today. I'll echo what many of the questions have been about the internships. I think this is something we need to address as a committee.
I wasn't a member of any internship program, but I started on the Hill as a staff member when I was 18 or 19 years old. But I know the value of these internship programs. I think you said it really well when, yes, there could be a benefit to the member. More importantly is the benefit to that intern of having that political experience and getting their foot in the door. I don't think we can lose sight of this. I look forward to continuing the conversation and trying to get to a reasonable ground on that.
Mr. Vis made some very good points about the parliamentary internship program. We have those witnesses in, and how that program is structured financially.
Madam Chair, I want to open a bit of a can of worms here if I can with Mr. Dufresne on something that was actually addressed. I know this has been a conversation at different times, and the commissioner has raised this. It's around the idea of letters of support and where the line is.
The analyst did a great job in the summaries of talking about this. I'll just read it quickly. It says that “Mr. Dion suggested that the Committee could examine the issue of acceptability of letters of support.“ He indicated that many members have contacted his office to get advice or to ask about it. Currently the Code makes no mention of letters of support. However, section 9 states:
A member shall not use his or her position as a member to influence a decision of another person so as to further the member's private interest or those of a member of his or her family, or to improperly further another person's or entity's private interest.
Actually, I think I'll put Mr. Barrett on the spot. I think he goes to the commissioner very often to ask about these letters of support. Where there is an asterisk here or where I think it requires clarification is immigration cases or case files in our constituency office. I wonder about your thoughts from a legal perspective are on this. I read that to say that if somebody comes in and has a problem with CRA or their bank deposit or child tax credit, we can go in and advocate and get that resolved. But if I think of an immigration case where there's a letter of support to say that I vouch for this person, X or Y, and I read about improperly furthering another person's private interest—in this case to gain Canadian citizenship or something along those lines—I think it's a very big grey area right now. So there's casework and then there are individual letters of support for certain individuals. Have you put any thought into where there may be a line or a legal aspect of where our casework starts and where advocacy or advancement of a private interest starts?
Sorry if I opened a can of worms, but that's the one that needs to be addressed.
:
Thank you, Chair, for welcoming me to this table, and particularly, thank you, Greg, for giving me your time.
I'm going to try to do this concisely. This is a real-life example. It's not hypothetical, but I'll leave the name of the individual out. I will say, I think we have a loophole in our code of conduct.
I will also say, like Ryan, as somebody who studies ethics, although in the context of studying for a theology degree, there's the concept of ethics as a high calling to moral conduct and an aid to understanding of right and wrong, and then there are codes of conduct that I think lead us to looking at the black letter of a code and saying that which isn't specifically prohibited is allowed even if it offends a conscience.
Here's the fact set. A sitting member of Parliament was hired by a U.S. corporation that was in the process of suing the Government of Canada. As a sitting MP, he testified against our government in a secret chapter 11 NAFTA tribunal case where it wasn't known he was a witness until a couple years later when the NAFTA arbitration tribunal ruled that Canada lost, largely due to the evidence of this member of Parliament. The only arbitrator to vote against us losing was the Canadian law professor. Canada had to pay out $8 million. The MP in question never disclosed how much income he obtained from doing this work. He was paid at his normal hourly rate for as much time as it took to do the work. I estimate that was at least $100,000, but we don't know.
He remained a member of Parliament through all this. When he was reelected, I went to the deputy clerk at the time to ask if he was entitled to take his oath of allegiance as a member of Parliament, because it occurred to me that testifying against the Government of Canada violated the oath, and should he be allowed to take it a second time?
That was viewed to be a non-factual complaint. I also then went to the commissioner of ethics. I didn't publicize that I had filed a formal complaint, but I thought the facts here were offensive to the concept of serving your country and being a member of Parliament, to accept private work from a U.S. corporation suing Canada.
I think we have a big loophole. The commissioner ruled that, because of his previous work, this was fine as an MP and he was continuing to be a member of the bar and able to do other work. I wondered when I saw the denouement in the Palace of Westminster with various....
What was dealt with Boris Johnson was called the “sleaze” complaints. Would those members of Parliament in the Palace of Westminster actually violate anything in our code of conduct to take private work for which they were paid?
Have you any comment on this? Do we need to actually fix our code of conduct or be more rigorous in our oath as members of Parliament to be loyal to Canada only and not put our private interests ahead of Canada?
:
Thank you for inviting me here today.
In my opening statement, I'll provide you with a brief overview of certain features of the Members' Integrity Act, which is the Ontario legislation that sets out the ethical obligations for members of provincial Parliament. I will also comment briefly on some of the issues this committee will be considering in its review of the conflict of interest code. That said, I believe I can best assist you by allowing members to ask me questions and providing Ontario's experience on the topics that are of interest to the committee.
First, I thought I should clarify that in Ontario, the Integrity Commissioner has the mandates and authority of three federal independent officers, including the Conflict of Interest and Ethics Commissioner, the Commissioner of Lobbying and the Public Sector Integrity Commissioner. I'm also the ethics executive for ministers' staff, as well as for the secretary of the cabinet. Having these multiple roles can be beneficial, because it provides me with an understanding of the ethical issues that elected officials face, as well as the ability to address them in other ways. For example, not only can I advise a member under the act whether he or she can accept an offered gift from a lobbyist, I can also advise a lobbyist not to offer that gift in the first place.
In Ontario, the Members' Integrity Act lays out the conflict of interest rules for elected members, as well as their annual financial disclosure requirements. The act also contains the requirements and restrictions for ministers. In many ways, the rules and requirements are similar to those federally, and the act provides that members can seek my advice on their ethical obligations and any conflict of interest matters. The number of inquiries I receive each year averages in excess of 300, all of which are responded to in writing so the member can rely on that advice. In the year following the 2018 provincial election in Ontario, I responded to more than 530 inquiries. This was due to the high number of new members who had been elected, all of whom attended a training session I conducted shortly after the election.
I note that Commissioner Dion has recommended mandatory training for newly elected MPs. While Ontario does not have mandatory training, there is a long-standing history of commissioners addressing newly elected members following an election. I find this serves as a helpful introduction to the commissioner, the office and the act. However, we also have another requirement that serves as a form of training. Similar to the requirement in the conflict of interest code, members of provincial Parliament have an annual requirement to provide the commissioner with a private disclosure statement of their assets and liabilities, along with that of their spouse and any minor children.
Along with this disclosure process, the act requires that each member meet with the commissioner to discuss the statement and their obligations under the act. Meeting individually with all 124 MPPs certainly takes time, but it allows me to ensure that their financial disclosure is in line with the requirements of the act. It also provides me the opportunity to discuss any conflict of interest situations they may be facing, or to remind them of specific rules under the act. I view this annual activity as a form of refresher training for members about their obligations, and I emphasize that I do this on a one-to-one basis.
Of course, training can be effective in many different formats, but I will say that in my experience, the key to carrying out such activities is to build trust between the ethics office and the elected members. This ensures that members feel comfortable contacting the office when they need advice.
I've reviewed the recommendations that Commissioner Dion has made for amending the code. While several of them are specific to the language of the code and the system in place for the House of Commons, I want to touch on two of them as they relate to the Ontario experience.
The first is recommendation number four regarding treating sponsored travel as a gift. This is the approach taken with Ontario's legislation, meaning that a member must seek my advice and determination on whether he or she can accept the offer of the trip.
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Madam Chair, members of the committee and fellow commissioners, before I begin, I would like to thank the committee for its invitation to participate in this consultation. The exercise that you have recently embarked upon is of great importance for our democratic institutions if they are to be in tune with the reality in which they operate. As you have requested, I am here today to share my thoughts with you on the means by which parliamentarians' questions relating to their obligations under the code can be addressed in a non-partisan and independent manner. I will also speak on how parliamentarians can reconcile their private interests with their public duties and functions.
First of all, it seems obvious to me that the person responsible for applying the code of conduct for elected officials has a scope of independent action that is commensurate with the process of their appointment. In Quebec, the Ethics Commissioner is appointed by the national assembly, by two thirds of its members. This status allows the office holder to exercise public office in an independent and impartial manner. The appointment of the commissioner is different from that of other appointees, however, since it must be proposed jointly by the premier and the leader of the official opposition after consultation with the leaders of the other parties represented in the assembly. In making this choice, parliamentarians have demonstrated the exceptional and delicate nature of this unique position, and the importance of appointing a person in whom all members of the national assembly can have confidence.
The independence and impartiality of an institution such as the commissioner's position must also be embodied in the mechanisms to prevent conflicts of interest, real or apparent; they must deal with situations where the ethical obligations of elected representatives are not respected.
The Quebec code, by allowing the commissioner to give advice to MNAs, encourages MNAs to be proactive and transparent. In addition to being confidential, advice can only be requested by the member of the national assembly directly affected by a given situation. Moreover, the situation cannot be hypothetical; it must be based on concrete facts. These criteria undoubtedly contribute to preserving this tool from attempts at instrumentalization.
As for investigations, there are also mechanisms to ensure that the independence granted to the commissioner in the interpretation and application of the code's provisions is respected. For example, when a member of the national assembly requests an investigation, it must be focused and substantiated. The request must clearly set out the reasonable grounds for believing that another member of the national assembly has breached the code, including a statement of the facts and the evidence available, if any. A member cannot ask the commissioner to conduct blind audits to determine whether there is a basis for an investigation. In investigations undertaken at my initiative, I also adhere to this reasonable grounds standard.
In a parliamentary system now characterized by fixed-date elections, which suggests a sometimes more intense political dynamic at the end of the cycle, these criteria can act as safeguards. Moreover, the assembly, by virtue of the parliamentary privilege to discipline its members, reserves the right to adopt a sanction following a report finding a breach; however, the interpretation of the provisions of the Code of Ethics and Conduct of the Members of the National Assembly is the exclusive responsibility of the commissioner, who may also issue guidelines if they deem it appropriate.
As to how elected officials can reconcile their private interests with the exercise of their office, there is no easy answer. The difficulty lies in the fact that the rules must be applicable to all, while their interpretation must inevitably take into account the context and facts surrounding each situation. It is therefore necessary, in order to ensure a certain predictability of the rules, to find a balance in their assessment in light of particular circumstances, without proceeding only on a case-by-case basis. Moreover, the backgrounds from which elected representatives come are diverse, and the contexts in which their functions are exercised evolve rapidly. This notion of necessary applicability therefore makes review exercises like the one you are conducting extremely timely. In Quebec, the legislator also wanted such an exercise. The code in fact provides that the commissioner shall report every five years on its implementation and on the advisability of amending it.
But it is unrealistic to believe that these exercises can be held with such frequency that codes of ethics will succeed in providing an appropriate response to any situation every time, especially as they depend on a consensus between parliamentary groups. I am therefore of the opinion that office holders such as myself must be allowed a certain amount of leeway in the application of ethics rules, so that they reflect the values of society as much as they encourage compliance from the parliamentarians who must respect them.
Thank you.
:
Thank you, Madam Chair, for the privilege of participating in this panel.
As you've just noted, by separate appointments I am the conflict of interest commissioner in Yukon as well the the integrity commissioner of the Northwest Territories. The two are not connected. I just happen to hold both offices. In both cases, I am an officer of the respective legislative assembly. Each assembly has 19 members, which makes my scale of operations enormously smaller than Mr. Wake's, Madame Mignolet's or yours.
I live in Edmonton; I do not live in either territory, nor does the integrity commissioner of Nunavut live in Nunavut. We could not do so without our undoubtedly being in conflict of interest just by our daily lives.
I've been the conflict of interest commissioner for Yukon since 2002, for 20 years. The Yukon legislation applies to members, ministers, employees in the cabinet and caucus offices and deputy ministers. It came into force in May 1996. It has only occasionally been updated, notwithstanding various suggestions for doing so contained in my annual report. They don't have the political will to do what your committee is doing and required to do to review their code. It obviously seems to be meeting their needs.
Since July 2020, the Lobbyist Registration Act of Yukon has assigned certain functions to the commissioner, and I have to say that I have some concerns about adding functions to the commissioner, because the commissioner inherently is an officer of a legislative assembly, and a lot of the other functions are not necessarily of the same nature in kind and might not be privileged under parliamentary privilege.
I've seen the Northwest Territories conflict of interest commissioner title changed recently to integrity commissioner since 2014. The NWT legislation applies to members and ministers. By a separate appointment, I am the ethics counsellor for deputy ministers, but it's a separate appointment. There were amendments in 2019, so NWT has periodically reviewed its code, as you are doing.
In 2019, the assembly gave my office jurisdiction with respect to dealing with breaches of the members' code of conduct, which continues now from assembly to assembly; it doesn't die and have to be re-enacted. It can be amended by future assemblies, and the provisions of the code go beyond strict financial conflicts of interest.
The commissioner's role in dealing with complaints alleging breaches of the act, whether conflicts of interest or of the code, is as a gatekeeper to decide whether complaints should be dismissed on certain grounds or sent to a sole adjudicator for a formal inquiry and recommendation to the assembly. If there is a complaint in NWT, I have a role as gatekeeper, but I don't have a decision-making role in the ultimate merits of the complaint. I think the NWT and perhaps Nunavut are the only jurisdictions that separate those two functions.
In 2021, last year, the assembly accepted a report from a sole adjudicator, expelled a member and declared the seat vacant. That seat was just filled by a by-election on Tuesday of this week.
I've also acted as legal counsel for a number of conflict of interest commissioners across the country.
In my view, it's imperative that members recognize and live up to the standards they have put in place for themselves. In my experience in both jurisdictions, members overwhelmingly want to do this, and they're generally quick to seek advice in advance about what they do and to follow that advice. It is critical for all to recognize the importance of the applicable standards in order to maintain public confidence in the integrity of members.
However, it is extremely important that unfounded allegations of conflict of interest, even for that matter, founded ones, not become political weapons of choice. Politicizing the office is not helpful. This is not just by other members, it's by the press or by the public.
With respect to some of the comments in your previous session, NWT has a set of guidelines for letters of support that members might write on behalf of constituents or others. They're very clear that it does not prevent a member from doing their duties as a member representing their constituents, but that is very helpful, in my view. Yukon doesn't have similar guidelines.
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In the interest of time, and with the three witnesses here and your experience, I'll perhaps ask you to provide the answer in writing, and our clerk or analysts could follow up with your offices on a couple of other things on topics we've been talking about, one of them being the endorsement of other elected officials at other levels of government. Do you have rules or protocols regarding, for example, a provincial member endorsing an municipal candidate? If there are or if there are rules around the use of resources and your titles around that, that would be appreciated.
Another thing that would be helpful, I believe, in our deliberations would be around when your office starts to get involved in the acceptance and price points of gifts, not only the acceptability of a gift but the public disclosure of that. Do you have a minimum limit at which members would go for declaring or asking if a gift is appropriate or not, not only for public disclosure. At what point they should consult on the acceptability? It would be appreciated to have your written comments on that.
Another thing to ask about is the definition of “friends”, which we've been struggling with. I would be interested in knowing what your definition of “family” is in your respective jurisdictions, but we're struggling with the concept of friends. I joke that I have a lot of friends, I feel, and a lot of people who think they're my friends, and I'm struggling with the.... The government benches are not agreeing right now with my population of friends. Do you have any definition of “friends”? Have you considered it? Whether you have or have not, perhaps provide some reasoning or experience you would have on that.
Finally, Madam Chair, through you, any information you could provide on letters of support for individual applications to government agencies, individual constituents or a request for a service from the government, if you have any advice and experience on that topic, I think that would certainly guide us in our deliberations of the report.
Madam Chair, in the interest of time, I'll leave it at that.
:
Thank you very much, Madam Chair.
[Translation]
I thank the witnesses for appearing before us today.
[English]
Mr. Jones, you mentioned an issue that my colleague brought up in the previous panel with respect to politicizing complaints. In our code, we have stipulated that a member who requests that an inquiry be conducted shall make no public comments relating to the inquiry until the Commissioner confirms that the member who is the subject of the inquiry has received a copy of the complaint, or 14 days have elapsed following the receipt.
What are your thoughts with respect to the politicization of conflict of interest inquiries, whereby an MP can put forward an accusation or make request for an inquiry? It could be completely unfounded, but as you know, the job that we do is very much in the public domain and this could be spread through social media. The reputation of the member can then be tarnished.
Would you recommend that this provision be removed from our code?
:
Thank you, Madam Chair.
First of all, I would like to say hello to Mr. Wake and Mr. Jones and, in particular, to Ms. Mignolet, whom I used to work with at the Quebec National Assembly in another life.
My warmest greetings, Ms. Mignolet; my first question will be addressed to you.
With regard to your presentation, there is one specific thing that I would have liked to hear more about. I'll take the liberty of reading a bit of what you said:
Moreover, the situation cannot be hypothetical; it must be based on concrete facts. These criteria undoubtedly contribute to preserving this tool from attempts at instrumentalization.
I would like you to tell me more about the “attempts at instrumentalization”.
:
Thank you, Madam Chair.
I think the preventative code process that has been put in place means that you cannot ask for advice on a situation that does not directly concern you or is purely hypothetical. Advice is confidential, obviously.
The objective is to give advice on a real situation. We are there to prevent conflicts of interest, to assist in reflection, and to help people adopt correct conduct in the circumstances.
The last thing we want, and this has been clearly thought out from the outset, is for people to be able to call the commissioner to try to find out how an opponent might behave, or because they have heard that a given person has some issue, which could lead to wanting to publish the case or cases in the media.
It's really to avoid that, and I think it's quite appropriate.
:
Madam Chair, you have to remember that the population of Yukon is about 30,000 people, the majority of whom live in Whitehorse. If I lived in Whitehorse, my daily life would undoubtedly take me into contact with people who are members of the legislative assembly or who have complaints.
Similarly, the NWT population is about the same or slightly more. It is a similar situation with Yellowknife.
The commissioners of Yukon have never lived in the territory while they were commissioners. The commissioners of NWT have almost always lived elsewhere.
It prevents me from being conflicted out, or to be perceived to be, just because of my daily life, where I go to this church or I do that, or whatever else.
Ontario is a big jurisdiction. Canada is a big jurisdiction. Ottawa is a big city, and so on.
In Quebec, the immediate family of an elected official is also defined quite restrictively. It is limited to the spouse, dependent children and dependent children of the spouse.
From our side, this does not seem to be a problem when it comes to the code, since the article provides that one cannot favour one's family members. The article refers to members of one's immediate family and to one's non-dependent children. In this context, the definition is already broad.
For the remainder, although other extended family members fall into the category of other persons, if an elected official has improperly favoured the interests of another person, the proximity test comes into play.
:
Thank you, Madam Chair.
As far as Quebec is concerned, there are provisions in the code that govern the holding of multiple offices. When we talk about the members of the executive council, we are talking about an exclusive function. They cannot hold other offices, but MNAs can, and this is regulated. The code provides for clear incompatibilities of function, such as another elective office, work within the government or in international organizations. There are already good guidelines, and certain relaxations are provided for, particularly in the education or health sectors. I could give you a written answer to tell you more, as my answer could be long.
With regard to previous occupations, some of them may indeed require that a protective measure be put in place to avoid conflicts of interest. In some cases, this may make the exercise of a particular duty as a minister or other more complex, but we do guide members in this regard.