Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 3 - Evidence - October 28, 2014
OTTAWA, Tuesday, October 28, 2014
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill S-207, An Act to amend the Conflict of Interest Act (gifts), met this day at 9:34 a.m. to give consideration to the bill.
Senator Vernon White (Chair) in the chair.
[English]
The Chair: Good morning. Welcome, everyone, to the Standing Committee on Rules, Procedures and the Rights of Parliament. I want to thank everyone for being here today. Today, we will be looking at Bill S-207, An Act to amend the Conflict of Interest Act (gifts).
Before we start, my name is Vern White. I'm the chair of the committee, and I would like to allow everyone a moment to introduce themselves. I'll start with the deputy chair.
Senator D. Smith: I'm David Smith, senator from Toronto.
Senator Doyle: Norman Doyle, senator from Newfoundland and Labrador.
Senator Moore: Good morning. Wilfred Moore, senator from Nova Scotia.
[Translation]
Senator Joyal: Senator Serge Joyal from the district of Kennebec, Quebec.
Senator McIntyre: Senator Paul McIntyre from New Brunswick.
[English]
Senator Batters: Senator Denise Batters, Saskatchewan.
Senator Gerstein: Irving Gerstein, senator from Ontario.
[Translation]
Senator Nolin: Pierre Claude Nolin, senator from the province of Quebec.
[English]
The Chair: Thank you very much. With us, as well, today is Senator Joseph Day, who will also be representing an absent senator after giving evidence to us. We will have three different witnesses today, starting with Senator Joseph Day. Next will be Mr. Sidney Linden, Conflict of Interest Commissioner, Office of the Conflict of Interest Commissioner of Ontario; and Paul Fraser, Conflict of Interest Commissioner, British Columbia's Office of the Conflict of Interest Commissioner.
I'll start with Senator Day. After you have a few words, we will have an opportunity to ask questions.
Hon. Joseph A. Day, sponsor of the bill: Thank you very much, Mr. Chair and honourable senators. Bill S-207 is a bill that I have put forward to amend the Conflict of Interest Act. The Conflict of Interest Act flowed out of Bill C-2, in 2006, which was called the Accountability Act. Honourable senators will recall that that was a huge piece of legislation that had a lot of other sub-parts to it, and it was the first piece of legislation that came from the new administration of Mr. Harper in 2006. It was done very quickly, and it's perhaps for that reason that a few gaps appeared in the legislation. I believe this is one of them. If we want to be true to the purpose of the bill, the accountability legislation, and the Conflict of Interest Act, then we should rectify this fairly minor error in terms of words. I believe it's an error or an oversight, but it has a profound effect on the accountability aspect of the legislation.
Let me give you some background. If you have before you the Conflict of Interest Act, the pertinent sections are 11, 23 and 25(5). Section 11 is probably the most important, but what it deals with is what types of gifts can be received by public office-holders and reporting public office-holders. The public office-holders are clear and well-defined in the legislation. They're cabinet ministers and people who work with cabinet ministers, advisors. It's quite an extensive list of just who would be included — ministerial advisors, Governor-in-Council appointees. It's that level of person who is covered by this legislation. There is also another term that is clearly defined, called "reporting public office-holders," and that's a somewhat more restricted group than the general public office-holders. Depending on which section we're looking at, we're looking at either a public office-holder or a reporting public office-holder and what they can or cannot receive in terms of gifts. If you look at the definition section of the Conflict of Interest Act, you will not find a definition for "gift." I could have taken the approach of trying to define "gift" and "friend." I'm sorry; "gift" is defined. "Friend" is not. My apologies. It's the friend aspect that becomes important. What is a friend? If you think in terms of Facebook, who are friends on Facebook? If the courts were looking to a public, general understanding of what a friend is and they looked at Facebook, there are thousands, if not millions, of people who are on Facebook and social media. They have thousands of friends. So we're talking about millions and millions of people if that were the definition. That's surely not what was intended by this legislation.
Before I go deeply into the wording that appears here, let me just give you a general feeling for what is here. Section 11 of the act says:
No public office-holder or member of his or her family shall accept any gift or other advantage, including from a trust, that might reasonably be seen to have been given to influence the public office-holder.
That's the first test. Any public office-holder can take and receive a gift, and a member of his family could receive a gift if it was not reasonably foreseeable that it might be given to influence that public office-holder. Test number one.
Then there are some more exceptions to the public office-holder receiving the gift. One of those is, I think, where the problem arises. Section 11(2) says: "Despite subsection (1)." Despite the already applied test of whether this is likely to influence this public office-holder. You say, "Okay, it is. He shouldn't receive that gift." Subsection (2) says that there are exceptions to that. He can still receive the gift if it's under the Canada Elections Act, and that's another regime that's set up to $500 worth of gifts reporting. We don't have to get into that. Subsection (b) says "that is given by a relative or friend. . . ."
So what section 11 says, as it now appears, is that a public office-holder can accept a gift, even if that gift could reasonably appear to be influencing that public office-holder in the performance of his duty, if the gift comes from a friend. If the gift comes from a friend, and "friend" is not defined. That's the nub of the amendment that I'm proposing. The other two sections relate to reporting to the commissioner and publishing the name of where the gifts come from if there is such a gift.
If you look back to the history of this particular section, as I said, this became statutory law in 2006. Prior to that, way back when, every Prime Minister had a conflict of interest code for his or her primary office-holders, the public office-holders, the cabinet and cabinet advisers, but it was never made statutory. It was a code that the Prime Minister required of each of those people that he or she appointed.
In 1985, the code used a qualifier to "friend." In this exception, the qualifier said "personal friend." If it's a personal friend, it makes it a little tighter. However, it is not defined. That went on for a period of time. It was deemed to be a little too loose, so later on, the terminology used in the code was "close personal friend."
Then in 2006, "personal" and "close personal" was dropped, and it was just "friend" again. We pointed this out when I was on the committee, and I was in fact the critic on this legislation when it went through. In 2006, when this went through the chambers, we brought it to the attention of the government. These provisions were noted by witnesses we had at the time. Mr. Howard Wilson, who served as the Ethics Counsellor for Prime Minister Chrétien, felt there should be some limitation put on "friend," as did Mr. Bernard Shapiro, the Ethics Commissioner, when the Federal Accountability Act was introduced in 2006. They both testified before the Standing Senate Committee on Legal and Constitutional Affairs. I see some of my colleagues here, when this legislation went through, who were on that committee at the time. They both recommended that this portion be tightened up where the word "friend" appears. They could not understand why the earlier code was changed. Honourable senators, it's attempting to put back some limitation on the word "friend."
There could have been other ways to proceed, but I felt that just dropping the word "friend," rather than "close personal friend" or "personal friend," was an easier way to go in this particular legislation. I'm hoping that the government would adopt this concept — and maybe they still will, because this is still in the Senate — and put in what regime they felt should be done.
Clearly, this bill that I'm putting forward highlights an unacceptable situation of allowing for an exception for a high office-holder. It is important that you understand that these are high office-holders. High public office-holders are expected to live up to a higher standard than the normal person on the street. The high public office-holder can receive a gift from a friend. This gift might reasonably be considered to be given to try to gain some influence on the high public office-holder. That surely is not the intent. That is not accountability, as we would expect it.
There are two other provisions: in section 23, for a $200 gift, you have to report it to the commissioner, unless it's from a friend; and in subsection 25(5) — the other amendment of the three — is if the gift is more than $200, then you have to publish it, so that the public knows that you received this gift. But, if it's from a friend then you don't have to. I think those two exceptions flow from section 11, by taking the word "friend" out, because it's not a defined term.
Honourable senators, those are my submissions. I'd be pleased to try to clarify any point for you.
The Chair: Thank you very much, Senator Day, for your comments today. We truly appreciate it. Senator Doyle.
Senator Doyle: Senator Day, why do we need this bill? Wouldn't it be less complicated if we just said all gifts have to be turned back in to the government?
Senator Day: It certainly would be less complicated.
The Chair: Not for government.
Senator Day: This is a government decision. I don't pretend to have the only solution to the problem. My purpose is to highlight an issue and to propose one way of resolving it. There may be others. As I mentioned during my submissions, another approach might be to define the word "friend" in a restricted manner.
Senator Doyle: How do you deal with a public office-holder who has been given a watch as a gift? Is the responsibility on the public office-holder to go back to the individual and to find out the value of the watch? It could be $1,500. The individual might say it's only worth $200. How do you deal that kind of situation?
Senator Day: The gift of a watch is a difficult example. In Canada, a watch that might be valued at $1,000 or more, would in some parts of Asia, not be considered to be of that same value. Another exception is that despite section 11(1), the public office-holder who receives a gift ". . . that might reasonably be seen to have been given to influence the public office-holder. . ." in the decisions he or she is making, notwithstanding that and in spite of that, he can accept that gift if it is ". . . received as a normal expression of courtesy or protocol . . ."
It's okay if it's a normal expression of courtesy or protocol. In some of the provincial legislation, a gift from a relative or friend that is received in the normal expression of courtesy or protocol is combined together. That's okay because that limits what gifts you can take from a friend: wedding gifts, birthday gifts, and that kind of thing. It's in the normal course of courtesy or protocol. Whoever drafted this legislation broke that down into two separate things and therein lies the problem.
Senator Joyal: I want to bring to the attention of honourable senators and members of the committee that the Conflict of Interest Code, that governs the conduct of senators in relation to gifts, doesn't include "friend." I will read from corresponding section 17 of the code.
Senator Day: I have it in front of me, yes.
Senator Joyal: Section 17(1) states: "Neither a senator nor a family member shall accept. . . ." The concept of "friend" is not included.
Senator Day: Yes.
Senator Joyal: The concept or existence of a "friend" of senators is not included — ". . . shall accept, directly or indirectly, any gift or other benefit. . ." The person will understand what a "gift" means. A "benefit" is a much broader term.
Senator Day: Yes.
Senator Joyal: It might include anything. A "benefit" is, for example, I invite you to attend a hockey game. You are in the yellow or orange ticket section, depending on where you sit in the arena. At that point in time, it might pertain to a lot of money — like if you are in a private loge or something like that. Subsection 17(2) states that a senator and a family member may, however, accept gifts or other benefits received as a normal expression of courtesy or protocol, within the customary standards of hospitality that normally accompany the senator's position.
So in neither of those sections or subsections of section 17 is there any mention of a "friend." In other words, the "friend" exception doesn't exist in the Conflict of Interest Code for Senators. If we are to amend the Conflict of Interest Act, we have to make sure the Conflict of Interest Code of Senators remains in sync with the Conflict of Interest Act. It seems to me that the level of responsibility and obligation should remain at par; it should be comparable, in other words.
That's why, when I read your bill, with the explanation you provided and the debates that followed, I was concerned to make sure that the code would be in sync with the changes that you were proposing in the Conflict of Interest Act. Could you comment on that?
Senator Day: Yes, I agree. I think the more that the terminology can be the same or very similar, the more likely it is that they will have a good line of interpretation of this, if and when it's necessary to interpret it.
I point out to you that the exception in the code that we're all subject to as senators uses that same expression that appears in the Conflict of Interest Code for one of the exceptions; namely, that it's okay to accept a gift or other benefit as a normal expression of courtesy or protocol. That's the same wording that appears in the Conflict of Interest and Post-Employment Code for Public Office-holders. That's good, because that's doing what you're suggesting, that we should be using similar-type terminology.
Senator Joyal: Section 11(1) of the Conflict of Interest Act, which you are amending, refers to a gift that may be seen to have been given to influence the public office-holder. I want to underline "might reasonably be seen." It's the appearance that counts.
Senator Day: Yes.
Senator Joyal: It's not the real influence or not; it's the appearance. It is a very important notion, in my opinion, because then the question is not whether or not you are influenced. You are the only person who can testify as to whether you have been influenced or not. The test, which is appearance, is in the eye of the person who is observing what's happening.
Senator Day: Yes.
Senator Joyal: On the one hand, it is you; on the other hand, it is the other person. It is a totally different kind of test to meet.
When I read section 17 of the Conflict of Interest Code for Senators, I had to go back to the principles of the code, which are at section 2, whereby senators are requested to make sure that anything they do doesn't create the appearance of conflict of interest. At section 1(b), it reads:
The purposes of this code are to provide for greater certainty and guidance for Senators when dealing with issues that may present foreseeable real or apparent conflicts of interest;
So the obligation of a senator to prevent the appearance is on him, while the other responsibility is really on the person that offers the gift. That's why I wanted to be sure that the responsibility on senators was not less than what there is in the Conflict of Interest Act but in fact were of a similar scope.
Senator Day: I agree wholeheartedly. We don't have a purpose outlined in the conflict of interest legislation for public office-holders, but I put to you that this legislation and the Prime Minister's Conflict of Interest Code that has existed for many generations is to enhance public confidence and trust in the integrity of those public office-holders, which is exactly the same as for senators.
Senator Batters: Thank you very much, Senator Day. I note that the Accountability Act was brought in at the very beginning of our Conservative government's mandate in 2006.
Senator Day: Yes.
Senator Batters: Very important changes were brought in by that bill. In fact, it was a bit of a sea change in this whole area.
You indicated that you were a critic of that bill, and I'm just wondering why it took you — maybe you brought forward a previous iteration of this bill; I'm not sure. I'm just wondering why it took more than seven years to bring this particular bill forward.
Senator Day: This is my third time bringing this bill forward. There were two prorogations that caused it to fall by the wayside.
Senator Batters: Thank you. I want to get on the record that I'm not in favour of Senator Doyle's suggestion of turning back all gifts. What if I was to become a public office-holder and got married? Then I would have to give all my wedding gifts back.
I'm wondering, on a more serious note, if you would be in favour of leaving the word "friend" in the act if the word "friend" was defined. That was recommended by the five-year parliamentary review that took place, and it was accepted by our government as a response to that report. The government did accept all 16 recommendations. I'm wondering what you think about that.
Senator Day: I haven't seen the proposed amendment, but that is another way to go. If you define "friend" in a restricted manner so that it doesn't include all of your Facebook friends, then I can see how that could be a route to go. This has been since 2006, and it's clearly a problem crying out for a solution. What I proposed is only one of them, to highlight that there is a problem.
Senator Batters: You also referred to the stance of the two previous Ethics Commissioners on this bill, but you did not note that the current Conflict of Interest and Ethics Commissioner, Mary Dawson, did not recommend changes to the friends exception, and she actually specifically said that the word "friend" did not need to be defined within the act. She told a committee previously that she had already interpreted what it meant and provided quite an elaborate explanation and definition of what that meant. So how do you respond to her statement?
Senator Day: I would like to have seen the commissioner appear before us and provide that information rather than hearing it second-hand from you.
Senator Batters: Right, but it was before a committee that she actually made that statement.
Senator Day: Well, I don't know how the question was put. I don't know how she was interpreting it. But if she's contradicting two previous commissioners of ethics and integrity and many others across the country, then I would be very interested in having her appear before this committee and explain why and how.
Senator Batters: So you haven't read the previous transcript?
Senator Day: No, I haven't.
Senator McIntyre: Thank you, Senator Day, for your presentation. As you know, the Conflict of Interest Act draws a clear distinction between a public office-holder and a reporting public office-holder. As you pointed out a while ago, public servants and public office-holders are set in one category, and reporting public office-holders are set in another. Your bill amends the Conflict of Interest Act in both cases; that is, in the case of public office-holders and reporting public office-holders.
I note that in the case of public office-holders, it amends paragraph 11(2)(b) by removing the word "friend."
Senator Day: Yes.
Senator McIntyre: In the case of reporting public office-holders, it goes a little further. It amends section 25(5) of the act and, of course, section 23. Under section 23, the public office-holder must disclose to the commissioner, and under section 25(5), he must make a public declaration.
The way I read it, the bill narrows and the bill expands. For example, if I look at the summary of the bill, it reads:
. . . narrow the circumstances in which public office-holders and their families may accept gifts, and to expand the circumstances in which reporting public office-holders must make disclosures and public declarations in respect of gifts received by them or their families.
My question is this: Are you satisfied that the bill is fair to both public office-holders and reporting public office-holders?
Senator Day: Yes. The short answer is yes. Let me point out that the definition of "public office-holder" includes — and you know from a legal point of view, it could be others as well — ministers, ministers of state and parliamentary secretaries. The first category, under reporting public officer-holder, has ministers, ministers of states and parliamentary sectors.
The group is very similar. It's all of the people you would anticipate. Reporting public office-holder is a little bit more restricted, but it's restricted in the sense of full-time Governor-in-Council or ministerial appointees versus ministerial appointees approved by the Governor-in-Council. They are a very similar group of people.
Do I think that the approach that I've taken is fair to both? Yes, I do. I believe that there is a higher standard of public action for those who are inclined to take or be given gifts or other advantages when they hold a high office of appointment like this.
Senator McIntyre: That's good because, as I recall, we have approximately 3,000 public office-holders and over 1,000 reporting public office-holders.
Senator Day: I don't know that number, so I would accept that; but my guess is it would be even more.
Senator McIntyre: Your bill is fair to both.
Senator Day: Yes.
[Translation]
Senator Nolin: Senator Day, I would like to come back to the issue that Senator Joyal raised and that Senator McIntyre just alluded to. In your research, did you conclude that senators are not included in the definition of "public office holder"?
[English]
Senator Day: I'm sorry, I didn't have the translation complete.
Senator Nolin: This was raised by Senator Joyal, and for all us of it is quite critical. We have a conflict of interest code and, of course, we want that code to be both not less and not more than other codes affecting public office-holders. My question is simple: Are we included in the definition of "public office-holder?" That's my first question.
[Translation]
Senator Day: It is "charge publique" in French. I am sorry; I did not get the translation.
Senator Nolin: "Titulaire de charge publique".
[English]
Senator Day: This is intended by the Prime Minister to include members of ministers' staff; ministerial advisors; Governor-in-Council appointees, which we are not; full-time ministerial appointees, which we are not, designated by ministers who have public office. That's pretty clear. That's a public office-holder and then the reporting public office-holders are all the public office-holders but not in a more restricted manner.
[Translation]
Senator Nolin: An amendment was made to the Lobbying Act, and it included senators and their staff in the definition of "public office holder". That is why I was asking the question, because there seems to be a contradiction, and I want it to be very clear.
Senator Day: Lobbying, yes, but ethics, no.
Senator Nolin: Exactly, especially since the bill and act aim to analyze the perceptions of Canadians, as Senator Joyal said, even more so since we must be very clear with Canadians when we make amendments to these acts.
Senator Day: Of course.
Senator Nolin: If I may, Mr. Chair, I would like to ask a question about more practical things.
[English]
At Christmastime all those public office-holders have friends. Would it mean that a friend cannot invite a minister for lunch, even at Christmas?
Senator Day: Would that be considered a normal expression of courtesy? I would suggest that it would. It's a normal expression of courtesy at Christmastime and that's an exception to the rule, even if a third party would perceive that as trying to influence the public office-holder. If it's a gift received as a normal expression of courtesy, then it's okay and you're not offside.
Senator Nolin: It means that as a public office-holder I could use that analysis to say to all my friends, when they are giving me a gift, that it's a normal courtesy.
Senator Day: Yes, but don't forget sections 23 and 25, which say that you have to report the gift to the commissioner.
Senator Nolin: For example, a gift of a meal for —
Senator Day: $200.
Senator Nolin: Let's say, under $200.
Senator Day: Under $200, you don't have to report it. If it's normal courtesy, everything is fine, according to the law as it stands.
Senator Nolin: That's fine. I'm curious to hear that. I want to make it very clear for Canadians who are watching us. There is already a contradiction between the Lobbying Act and the Conflict of Interest Act. If we are to move into the courtesy area and define that, then let's do it.
Senator Joyal: There are two elements I would like to bring to the attention of the honourable senator that would be of interest to him and shared by all senators around the table and certainly to the public. On the first question: Are senators and members of Parliament covered by the Conflict of Interest Act? The simple answer is no. We are not covered and the House of Commons side is not covered. The two Houses of Parliament are governed by different legislation, as each has a conflict of interest code.
The Conflict of Interest Act goes further by stating that "the officer and staff of the Senate and House of Commons and Library of Parliament are not covered by the Conflict of Interest Act." They have their respective systems of rules. Internal Economy's former chair, Senator Tkachuk, can verify that the rules are the responsibility of the Internal Economy Committee and are implemented for "officers and staff of the Senate." Officers of the Senate include the Clerk of the Senate, for example. Mr. Robert is an officer of the Senate. The staff of the Library of Parliament are not covered by the act as they are covered by a different regime.
There are two kinds of obligations, in answer to your second question. First, it is prohibited to accept any gift in the normal course of life, except if the gift is offered as a courtesy. Second, if you are allowed to accept a gift, then you have the responsibility to declare it within 30 days. Under the Parliament of Canada Act, it's $200. Under the Conflict of Interest Code it's $500. There is a discrepancy; but you have the obligation to report it.
Whatever the status of gift, whether it is over $200 under the Conflict of Interest Act or $500 under the Conflict of Interest Code, you have an obligation to report it. It's part of your declaration brought up to date each month by the Senate Ethics Officer or by the House of Commons' Conflict of Interest and Ethics Commissioner. We have to distinguish the two: First there is a prohibition, except in specific cases. If you are covered by the exception, you still have an obligation to declare it. It's a kind of two-step approach.
It helps to understand the system because the devil is in the details. As you stated, the important thing is to maintain integrity and trust in the institution. How we achieve that in respect of gifts is complex in reality when you look into all the provisions of what is governed by the Conflict of Interest Act and what is covered by the Conflict of Interest Code. The two rules, as I said, have to be in sync because the system has to be logical and rational and be implemented as effectively in one section of public office-holder as for parliamentarians. You need to have a broad view, understanding the difference and nuances, to be sure that one doesn't go under the radar on such an issue because most of the time it's a question of perception.
Senator Moore: Thank you, Senator Day, for your initiative and for being here to discuss it with us.
I have three questions. On the matter of deciding to report to the Ethics Commissioner, who decides who is a friend? Is it the recipient of the gift?
Senator Day: Yes. I would argue that the way this is worded now, the recipient would say, "That person was a friend, and therefore I don't have to declare this."
Senator Moore: In making the decision whether or not to report, who decides whether the gift is meant to influence? Is it the recipient?
Senator Day: No, that would be a third party perception, I would think, reasonably perceived. Normally, this only comes into question when someone questions what is going on here. "Why is that person receiving all these gifts?" Then the tests start being applied, and they would be applied by the commissioner. If there was a court proceeding involved, that would be an interpretation.
Senator Moore: Before that, who would say, "Moore received a gift that was meant to influence him?" I don't say it. Who says it? Who brings it to the attention of the Ethics Officer?
Senator Day: Anybody could bring it to the attention of the Ethics Officer.
Senator Moore: How do they know?
Senator Day: By observation. They see something going on here that doesn't look or smell right.
Senator Moore: So there is no obligation on me as a recipient to bring the matter to the attention of Ethics Commissioner for his or her opinion. I don't have to take the initiative to do that, as I understand this?
Senator Day: You do under proposed sections 23 or 25 if it's over $200. Your personal test is, "Well, that was a gift from a friend; I don't have to report that. So what if it was over $200? It was from a friend." What's a friend? That's not defined.
Senator Moore: It sounds to me like you're asking me to mark my own exams.
Senator Day: Some people are fairly good at that.
Senator Moore: My third point is that this all hinges around the value of the gift being $200. Did you consider whether or not that value should be reduced to, say, $30? In the U.K., £30 or more must be reported. Did you consider that as being another opportunity to narrow down the perception and to help the legislation?
Senator Day: Actually, Senator Moore, I confess I thought, if anything, it should be increased. The $200 was back in 2006. In the Canada Elections Act, it's $500. In the Senate code, it's $500. I looked at $200 and thought that might be something that somebody might like to change, but I decided it wasn't up to me to propose that change.
Senator Moore: Thank you.
Senator Martin: I'm listening to the questions from my colleagues, but I'm also looking at the commissioner who is available to us by video conference. I thought the question that Senator Moore asked would be a very good one for our commissioner, who could perhaps shed some light on who brings it to his attention and what are his thoughts on some of those questions.
The Chair: We're going to allow the two commissioners to give evidence. He's just listening in so he has an understanding of where we're going.
Senator Martin: I apologize. I was late because I was in another meeting. I was just looking at the commissioner and thought I would love to hear from him. I will save my question.
Senator Cools: I have been listening with some interest. I have the strange suspicion that we may be tying ourselves into some knots. Some of us around this table had the experience of sitting on the committee when the first act was passed. Some of us can remember vividly the fact that senators fought three different Prime Ministers in respect of getting their own conflict of interest code as a separate regime from the House of Commons. There was that rather silly attempt some years ago that has failed now three times to have a united commissioner for the two houses, and it proved very early that it was a no-go with senators. I wonder, when we are talking here about a conflict of interest, if we are holding in mind the interests that are supposed to be in conflict.
Senator Day: I would hope so.
Senator Cools: I was thinking you could wax poetic for me. I'm serious. If someone gives a bottle of wine that somebody else could say was worth — let's be wild here — $550 —
Senator Day: That's a good bottle of wine.
Senator Cools: Does that gift in and of its nature put somebody into a state of conflict with their interests? To what extent is there a conflict in that particular set of circumstances? I'm not promoting anything, by the way. I'm not advocating anything, but at the end of day we're supposed to be looking for situations that put one in conflict in respect of the public duty — for example, taking a $50,000 bribe to vote a certain way on a bill in a very closely matched house. I'm wondering whether it really matters if someone is a very experienced wine maker or producer or whatever and there is no bill before you or before the house in respect of any benefits to that person or any other circumstances from which that person is getting a benefit from you. Does it really matter to go to the huge expense that we are going to, creating more and more officers and more and more reports and endless time and money processing something that no reasonable person could see as bad or undesirable?
Senator Day: I always get my guidance from the legislation.
Senator Cools: So do I, but we are here making new legislation. That's my point.
Senator Day: We're interpreting the legislation that was passed in 2006. Prior to 2006, it was not in the form of legislation but was rather a code that the Prime Minister imposed on his appointees. Along comes the codification in the legislation, and the wording in section 11(1) is "that might reasonably be seen to have been given to influence the public office-holder in the exercise of an official power, duty or function." That's what we're looking at and assessing.
Senator Cools: So what is the difference between reasonably be seen or be seen as?
Senator Day: The difference is the test of reasonableness.
Senator Cools: To my mind, there is a huge difference. One is you are dealing with the reality of it, the fact of it, the actuality of it, the actuating of it; the other one, you are dealing with someone's imagination, possibly.
Senator Day: You will know that "reasonable foreseeability" is a well-established term in law.
Senator Cools: That's right, but that has no application in these circumstances.
The Chair: Senators, we have two other witnesses as well this morning that we'd like to hear from. We understand Senator Day is staying with us today, which is excellent. We may have some more questions later, or something else may transpire.
Our next two witnesses will be Paul Fraser, Conflict of Interest Commissioner for British Columbia, by video conference; and Sidney Linden, Conflict of Interest Commissioner for the Province of Ontario. Mr. Linden has generously offered that our video conferencing commissioner start first. If I may, sir, if you would like to begin with a few words, then I'm sure we will have lots of questions.
Paul D. K. Fraser, Q.C., Conflict of Interest Commissioner, British Columbia's Office of the Conflict of Interest Commissioner: Thank you. I'm delighted to be here in the middle of the night in Victoria, British Columbia. Thank you very much for the invitation that you've extended.
I think it's important, quoting from the guidelines that were published by Commissioner Mary Dawson in July 2011, to repeat what I think Senator Day has already said, and that is that the purpose of prohibiting public office-holders or their family members from receiving gifts is to preserve confidence in the integrity of public decision making.
I should say that looking at the legislation you are considering amending, across this country, from sea to sea to sea, the only legislation that refers to "friend" as an exception to the gift rule is the federal legislation that you're considering. In all of the other jurisdictions across the country, there isn't any such provision.
The debate so far in the conversation back and forth has addressed a couple of things that I might try to deal with. First of all, there has been a continuum — I'm repeating what has been said, but I think it's important to give it some context.
There has been a continuum from 1985 to the present time. In 1985, the Conflict of Interest Code for ministers provided an exception for "gifts from personal friends." At some later time, the code was changed to accept "close personal friends." Then in 2006, the now existing legislation accepted a gift given by a relative or friend.
I suppose it's counterintuitive in a sense. One would have thought, frankly, that the continuum would have begun with gifts from friends and then moved in the other direction so that it became a gift from personal friends and then a gift from close personal friends. Instead, what we have is a situation where the term "friend" was added in 2006.
I heard one of the senators mention — and I've seen the debate that has occurred to this point in time — that Commissioner Dawson had indicated in the transcript before the House of Commons committee that, in her view, it was not necessary to define the word "friend" because she had already interpreted what it meant. It seems to me, with respect, that has to be seen for what it is. She had really no alternative but to attempt to interpret the legislation that is before her. She wasn't in a position, as we are today, to consider the simple task of dropping the term "friend."
What she did was to interpret the term "friend" as being friend includes individuals who have a close bond of friendship — does that sound familiar — a feeling of affection or a special kinship with the public office-holder concerned and does not include members of a broad social circle, business associates or colleagues, unless a relationship has developed.
So in coming up with that very practical interpretation, what Commissioner Dawson, in my view, has done is basically looked at the history that has evolved through the continuum of how the legislation or the codes have morphed into ultimately the legislation that is before us.
I have to say that if you were to look at this in a very straightforward and simple way, you would, with respect, ask yourself: How would a reasonably well-informed citizen likely react to being told that gifts from friends to members of the federal cabinet, among others, do not have to be disclosed under existing conflict of interest legislation? The citizen, I expect, would probably ask: What constitutes a friend? The answer would have to be that the term is not defined or qualified in the legislation and is simply the subject of interpretation from time to time by the Conflict of Interest Commissioner. That would likely lead to more and more questions. In the end, given the simple choice, I submit, of deleting the friend exemption or relying on an interpretation that they may or may not agree with, they would choose the former.
In saying that, I don't for a moment express any criticism of what Commissioner Dawson has had to say. I only say that the reality she has been in is to try to interpret the legislation as it is before her.
I have to say that we go back to first principles when we realize the whole policy of conflict of interest legislation in this country. We must remember that the federal legislation we're dealing with was the last one in 2006. The provinces, beginning with Ontario in 1989 and British Columbia in 1990 and thereafter the provincial jurisdictions coming across the land, have implemented conflict of interest regimes. Those regimes are basically based on the simple proposition that was articulated, I think, by Justice Frankfurter of the Supreme Court of the United States 75 years ago, that sunshine is the best disinfectant. The best thing that the public can hope for and deserve in conflict of interest situations is that there be a complete disclosure by public office-holders or elected members of the Parliament in terms of what we're dealing with.
So once the disclosure is made, by that cathartic process, the accountability, if you like, at the first level is complete. What happens after that — and people can argue about whether the ceilings or the floors with respect to the dollar value of gifts should be higher or lower. But what happens after that is when there is a disclosure, the public can ultimately make up its own mind about whether or not the acceptance of the gift is appropriate. What's important in all that the COI regime can deliver is that there be a mandatory required disclosure. In British Columbia's case, it's on an annual basis, and I suspect that's similar across the country.
If you ask me — and you haven't, but if you did — what would be the simplest solution to this problem, then frankly, for the reasons that I've already mentioned, I would simply prefer that the term "friend" be taken out of the legislation that exists, as has been proposed by Senator Day in this proposal. I think probably the best that I can do in the other circumstances here is to answer any questions that you may have.
The Chair: Thank you very much, sir. I appreciate your comments.
I'll now ask Mr. Linden to speak before we take questions. Please proceed, Mr. Linden.
Sidney B. Linden, Conflict of Interest Commissioner, Office of the Conflict of Interest Commissioner of Ontario: Thank you very much for inviting me to speak to you. I have a specific and somewhat limited role. I'll do my best to describe it. I have to begin by saying I've enjoyed listening to this discussion.
What you're talking about today is obviously something that I'm involved in every day, trying to make these kinds of decisions. At one level, these are very simple, very easy, common sense. Anybody knows who a friend is. Anybody knows what's right and wrong. At the same time, they're complicated. The more you dig, the more complicated it becomes.
I came across a very interesting book recently that I would like to recommend to senators. It's written by a law professor from Fordham University by the name of Zephyr Teachout. It's new; it's just out. I encourage you to read it because she traces back the issue of gifts to 1785, when Benjamin Franklin was the United States' ambassador to France. As he was leaving, he was given a snuffbox. A picture of it is on the cover of this book. It's ringed with diamonds. The value of it was astronomical. It presented all kinds of problems when he came back to the United States. What do you do with it? Could he receive it? The book is fascinatingly interesting and shows how much of the debate of the gentlemen who signed the Declaration of Independence was about gifts and the relationship between gifts and corruption. The whole start-up of the United States was to not duplicate the mess that existed at that time in the United Kingdom and in France. The effort was to come up with a regime that was less corrupt than there. So it is fascinating.
Our office in Ontario is fairly new. There are, as Commissioner Fraser has said, integrity commissioners across the country. All provinces have one, but Ontario is the only province that has a specific conflict of interest commissioner for public servants, which is the role that I have. So there's a distinction in Ontario between our integrity commissioner, who has similar responsibility to Commissioner Fraser and to Mary Dawson, regarding elected officials, on the one hand — I'm not sure where senators fit in the scheme — and the conflict of interest commissioner, who deals with the public servants.
So my responsibility is for the public service. Our Integrity Commissioner, Lynn Morrison, authorized me to say a few words on her behalf. She is otherwise engaged. Our regimes and our systems for elected officials in Ontario and public servants are very similar. We are in constant contact with each other, and we try to ensure that the principles on which the systems are built are consistent with each other.
The conflict of interest commissioner's mandate is to give advice or to make determinations, really make a decision, about specific conflict of interest and political activity matters involving Ontario public servants. We also are responsible for providing advice and giving direction to public bodies. In Ontario, of course, there are hundreds of public bodies — the Securities Commission, Infrastructure Ontario, eHealth. All of the public bodies are covered by the conflict of interest rules that apply to public servants. Everybody, no matter which public body you're in, is characterized as a public servant for the purposes of our act. We serve as a resource for developing and sharing information about dealing with conflict of interest and political activity matters.
Everybody in Ontario, whether you're in a ministry or in a public body, has an ethics executive. That's the way our act is structured. In the ministries, the ethics executive is the deputy minister. In the public bodies, the ethics executive is generally the chair or could be the CEO, depending on the public body. The ethics executive is the official who is responsible for making determinations in their respective organizations. So the system is very decentralized. The conflict of interest commissioner is, in effect, the ethics executive for the chairs of the public bodies. The cabinet secretary is the ethics executive for the deputy ministers.
The system was put into place in 2007, seven years ago. I'm the first full-time commissioner, and it's working very well. I have to say that. We have a website, which is easy to find — Conflict of Interest Commissioner, Ontario. We put out an annual report, which is readily accessible. We put in our annual report and on our website some of the determinations we've made. We do not give away any personal information, but we give the essence of what the questions were and what the answers we gave were. You're welcome to have a look at those. I don't want to bother you with them now.
Insofar as gifts are concerned — getting very specific with the topic here — in Ontario, a gift includes a benefit of any kind. That is simple, a benefit of any kind. It could be a hockey ticket, a golf game, a lunch, a gift of any kind. The rule, as far as accepting gifts, is in section 4. I could read it, but it's very similar to the language that you've read out several times. There's no mention of exceptions for friends or relatives. It all turns on influence and the purpose of the gift. Somebody — anybody — could be giving you a very inexpensive gift with the objective of influencing you and that would be improper. It wouldn't matter how much it was. Our act does say, the same as yours does, that, if it's of nominal value, as an expression of courtesy, expected in the circumstances, it's all right. There's no definition of nominal value, so we have put it at $50 dollars.
In a number of decisions that we've made, we've said that it doesn't matter if it's a relative or a friend. I don't think you need to worry about returning wedding gifts because they're not being given to influence your decisions. If they are, then they should be subject to scrutiny, but I think it would be very rare that a wedding gift would be given with a view to influencing you. If the gift is given to you with the objective of influencing you, then, regardless of its value, it should be very carefully scrutinized. We've put this $50 value on it, and we've said that it's unlikely that a gift under $50 is being given to influence you. So you needn't worry about it. If it gets over $50, you should at least ask the questions: Why are you being given this gift? What's the object? You're asking who has the onus. Individuals receiving it have the onus. We're not policemen. This isn't a law enforcement regime.
Every public servant has an obligation to declare what they think might be a conflict. If they receive a gift that might be given to them with the purpose of influencing them, they should bring it to the attention of their ethics executive, and a determination should be made. That's what public service is all about, being honourable and ethical, not being required to do something.
Anyway, our position in Ontario is that, as a general rule, giving and receiving gifts as public officials, whether elected or not, is not a good idea, but we understand. We have delegations coming to Ontario from other jurisdictions where gift giving is routine, and not to take a nominal, token gift would be rude. So we understand that. We don't say you can't receive any gifts, under any circumstances, any time, but our system doesn't carve out an exception for friends or family. Gifts of nominal value may be accepted where it's an expression of courtesy or hospitality. It may be that a gift of less than $50 would be inappropriate, just as it's possible that some gifts of more than $50 would be appropriate. It depends on the circumstances.
You need to look at the purpose of giving and receiving the gift. A public servant is not permitted to accept a gift, regardless of its value, if the intent of the gift is to influence the public servant. It doesn't matter if the gift is from a spouse, a friend or even a colleague.
As I say, for seven years now, we haven't had any push-back or complaints about our system or the interpretations that we've been putting on it. I obviously can't go through some of the individual decisions that we've made, but I welcome you to look at them on our website. I'm happy to answer any questions.
The Chair: Thank you very much to both commissioners. If I may, Commissioner Linden brought a short bio as well as a document on the conflict of interest rules at a glance. Both are in English, so I require the permission of the committee to share those without being translated. May I distribute them in English only?
Mr. Linden: There's a copy of my bio there and a list of our rules.
The Chair: Is it okay to share those?
Senator Joyal: If they are from Ontario, they should be in both languages.
The Chair: I appreciate your bringing that up with the Province of Ontario, but for today's meeting, can we share those? If one person would like us to withhold —
Senator Joyal: No, as a courtesy to our witness, who has been helping us in our reflections, of course; but I am of the impression that the legislation comes from Ontario and the rules are in both languages.
The Chair: This isn't legislation. It's a document prepared by the commissioner, including his bio.
Senator Cools: These are not official but are just thoughtful —
The Chair: Thank you, Senator Joyal.
We'll start with questions and the person we pre-empted earlier, Senator Martin, who had a question for one or both of our commissioners.
Senator Martin: I'm going to hold on at this time, only because earlier I was curious to ask the commissioner after Senator Moore asked questions. Let me reserve my time at this time.
Senator McIntyre: Gentlemen, thank you for your presentations. You're both Conflict of Interest Commissioners: Mr. Fraser in B.C., and Mr. Linden in Ontario.
I note that the regulations made pursuant to the Public Service of Ontario Act, 2006, specify the prohibited activities that could put a public servant at risk of conflict of interest. In B.C., section 7 of the Members Conflict of Interest Act sets out whether and when members may accept gifts. I note that some of the language found in the B.C. legislation resembles the language found in Bill S-207. I understand there are a lot of similarities between B.C. and Ontario on this issue. Are there any discrepancies?
Mr. Linden: I haven't studied the B.C. system. Have you studied Ontario's? You probably have, Mr. Fraser.
Mr. Fraser: I can say that there is no substantive difference in this area between Ontario and British Columbia. The British Columbia legislation specifically says that a member must not accept a fee, gift or personal benefit except compensation authorized by law that is connected directly or indirectly with the performance of his or her duties of office. Those words resonate in Ontario as well.
The act goes on to say that the prohibition that I've just mentioned does not apply to a gift or personal benefit that is received as an incident of the protocol or social obligations that normally accompany the responsibilities of office. Those words, or a form of those words, which may have been imported from Ontario into the B.C. legislation, have certainly been exported from both provinces to other jurisdictions since.
Mr. Linden: There's a slight difference between Ontario's rules for public servants and members' rules: It's $50 for public servants and $200 for members. You are required to declare a gift worth more than $200. The commissioner can determine whether it's appropriate. There is a slight difference between public servants and elected officials.
Senator Batters: Mr. Fraser, I liked your quote: "Sunshine is the best disinfectant." Generally, I very much agree with that. The Accountability Act was a huge ray of sunshine in this particular area.
I would like clarification from each of you, if I may. Mr. Linden, your responsibilities pertain strictly to public servants in Ontario; and Mr. Fraser, your responsibilities pertain strictly to MLAs in B.C.; is that correct?
Mr. Fraser: That's correct.
Senator Batters: The relevant parts of your legislation were reproduced for us by the Library of Parliament on the initial test to be satisfied. In Ontario, it is that a reasonable person might conclude that the gift could influence the public servant when performing his or her duties.
Mr. Linden: That's right.
Senator Batters: In B.C., the initial test to be met is that the gift, et cetera, is connected directly or indirectly to the performance of his or her duties of office; is that correct?
Mr. Fraser: Yes.
Senator Batters: How often have people in your respective jurisdictions, since these particular provisions have been in place or perhaps since you have held these offices, reported these types of gifts? Maybe we can start with Mr. Fraser.
Mr. Fraser: Our act requires that there be an annual mandatory disclosure and that the member meet with the commissioner. Typically, the meetings last for about an hour. Those disclosures take place after members have filled in an elaborate, I'm sorry to say, form requiring all kinds of information with respect to assets and liabilities. The form is a regulation supporting the act, so it can't simply be changed at whim. The form has been considered at least by the cabinet from time-to-time because it's in regulation and therefore an order-in-council.
The act further provides that the spouse of the member should attend the annual meeting, if available. It's not mandatory so, if available. Often, in my experience, spouses like to be there just to have an understanding of how it can possibly be the case, as their spouse has made such a contribution to public life and such a withdrawal of their privacy as a family, that all of it can be seen as fair and appropriate in the circumstances. It's a serious process.
Senator Batters: I particularly wonder how often do those disclosures include gifts from friends? How often do people make those types of disclosures?
Mr. Fraser: All gifts, because we don't have the "friends" provision in our jurisdiction, have to be reported to the commissioner within 30 days of their being received. It's an ongoing process.
Senator Batters: Is that frequent or infrequent? What sort of volume do you see of such disclosures?
Mr. Fraser: Yes, I understand. The volume depends on the hockey season, in part.
Senator Batters: Absolutely.
Mr. Fraser: It also depends on how well the Vancouver Canucks are doing. As carefully as I can, I would say that we get notices in the dozens every month. As you can imagine, we have a processing routine in the office. It's not difficult to process this material. We don't find, as a practical matter, that we get bogged down by people coming forward and complying with the act.
Senator Batters: Right. One hockey ticket could probably be more than $200, if you have such a limit there. You do have a processing team to handle those.
Mr. Fraser: Yes.
Mr. Linden: The system is very similar in Ontario. There is a requirement by all members to file a declaration. It probably does include gifts, but I'm not sure. There is no requirement for public servants to file annually any gifts they've received, so it would be difficult for me to say. There could well be people who are receiving gifts who aren't reporting them, but we do receive eight or ten applications a year from public servants who have a gift that they are not sure about.
Senator Batters: Eight or ten in a year?
Mr. Linden: Yes, a very small number.
Senator Batters: Even though hockey tickets could be something that would be included in that.
Mr. Linden: In Ontario, everybody knows that a hockey ticket would be out of bounds.
Senator Batters: In Toronto, hockey tickets are very difficult to get and they are expensive.
Mr. Linden: Here is one in our annual report. A public servant sought a determination as to whether it would be permitted to accept a one-time free ticket from a stakeholder to an event aimed at gathering, et cetera. I better make sure I have the right one here. The commissioner recommended that the public servant purchase the ticket and seek reimbursement for the expense in a normal way.
We have a number of these in our annual report where people have been offered tickets, and we have ruled a number of times that you shouldn't be accepting tickets from stakeholders who are trying to influence you. We're not talking about bar mitzvah tickets or wedding tickets.
Senator Batters: Who could be reasonably seen to be influencing. You brought up the wedding gift exception. I was specifically wondering about what if someone had a close friend who was attending their wedding and they happened to be a lobbyist. That person gave them a nice gift. Many would say that that's just simply a friendly gesture, but some might think that that is an attempt to influence them in their job.
Mr. Linden: That's the answer. Some might think one; some might think the other. That's exactly right.
Senator Batters: That's a question, not necessarily an answer.
Mr. Linden: There is no bright light that says, "On this side, you're okay; on this side, you're in trouble." It's up to you. If you think you are being given this because they're trying to influence you, you should stop and take notice, regardless of who is giving it to you. That's the way we have interpreted it in Ontario.
The Chair: In case we missed it, the value of a ticket for a Leafs' game is a lot different than the value of the team on the ice.
Senator D. Smith: I'd like to get to the bottom line, and I'd like a blunt answer. My instincts tell me what I think I'm going to hear. Are you recommending to this committee that this bill before us be adopted or not be adopted? What is the bottom line?
Mr. Linden: I'm a humble public servant in the province of Ontario. Far be it from me to recommend. I'm here to give you the benefit of our experience, from which you will draw whatever conclusions you will. We haven't found it necessary to have an exception for friends or relatives in Ontario. You can take that for what it's worth.
Senator D. Smith: If I came to the conclusion that if you were to be a member of this committee, you would vote against it, would I be wrong?
Mr. Linden: I would be in favour of the amendment to delete the word "friend."
Senator D. Smith: I would ask the same question to our friend in Victoria.
Mr. Fraser: In my respectful view, if I'm asked to express my personal opinion, as I said I thought fairly directly, I would accept the amendment and delete the word "friend." I think that's the easiest and simplest thing to do. I hear people say a friend is a friend. We all know what a friend is, but because it's infinitely difficult to define, it seems to me that it isn't worth a candle and it should simply come out, just as it doesn't appear as part of the exception in any of the other legislation across the country.
Senator Tkachuk: I have a short question on this subject of gifts. I've always thought it was unbecoming when you travel to another country and everybody exchanges gifts. I think it's really important for our culture. I know about other people's culture. I don't know why we receive any gifts and why we give gifts. We are going to do business. When the oil lobby comes to see me, they do not give me gifts. It's not part of our culture. With agriculture groups or any of those people, they don't come to my office bearing gifts because it isn't part of our culture. I think we should let other countries know that we know that in their culture they like to exchange gifts, but in our culture we don't. We would get rid of this problem by not accepting any gifts at all of any kind. There is no reason for it. I go on those trips and delegations, and we should tell them ahead of time that this isn't part of our culture and we don't do it, so don't expect a gift from us, and we won't get a gift from them, and we are done with it. You go about your business, which is why we're there.
Senator Cools: No more lunches.
The Chair: Did you have a question, Senator Tkachuk?
Senator Tkachuk: It was a statement. They can react to it, if they wish.
Senator Joyal: Mr. Fraser, thank you for your enlightening comments on the historical background of the provision in the act.
You mentioned a threshold of $500. I understand from your presentation that the code in British Columbia was adopted in the 1990s. Has the threshold of $500 remained constant through all those years? That would mean, in fact, that it's diminishing in value. Senator White could inform us about the price of hockey tickets in the 1990s compared to now. The price has gone up, as you know. My question is: Is that threshold diminishing in value, or should it be brought to $200, as it is in the act now?
Mr. Fraser: The threshold is $250 in British Columbia, and it has been at that point since the act was first proclaimed in 1991.
If I might, because I think one of the other questions wasn't answered fully, when a gift is declared to the commissioner, I'm advised about two things: The nature of the gift, and who the donor was. That then becomes a matter of public record in my hands.
A wedding present would not be caught by our legislation because, as the legislation says, you cannot accept a fee or gift or personal benefit that is connected directly or indirectly with the performance of your duties of office. Unless you are the officiant at a wedding and also happened to be a member of the legislature, it wouldn't be caught.
Senator Joyal: Mr. Linden, the key issue for me is the appearance of conflict of interest. Could you state, if you have it at hand, the exact wording of the Ontario legislation in terms of the appearance of conflict in relation to what you have to apply as the criteria?
Mr. Linden: I will read the exact language for you. The question of appearance appears in our rules in other sections, not so much in the gift section, regarding giving a benefit, which is much more subtle than a gift. It would be not giving the appearance of preferential treatment.
. . . shall not accept a gift from any of the following persons or entities if a reasonable person might conclude that the gift could influence the public servant when performing his or her duties to the Crown:
Shouldn't accept it if a reasonable person would infer.
Senator Joyal: It's the test of the average person that determines —
Mr. Linden: The man on the bus.
Senator Joyal: Could be the woman, not only the man.
Mr. Linden: That language should be changed. It says "public servant," so it's non-generic.
Senator Joyal: Mr. Fraser, what is the wording in the B.C. legislation in relation to the test for the appearance of conflict?
Mr. Fraser: In fact, there is an interesting aspect to it, and that is that British Columbia was the first jurisdiction to deal with an apparent conflict of interest. The test adopted in the legislation is the test that is, by and large, the kind of test applied in most jurisdictions. It is a purely objective one and not subjective. The legislation specifically says:
For the purposes of this Act, a member has an apparent conflict of interest if there is a reasonable perception, which a reasonably well informed person could properly have, that the member's ability to exercise an official power or perform an official duty or function must have been affected by his or her private interest.
It can't get any more objective than that.
Mr. Linden: I think that language comes from a case. I don't know the name of the case, but it's language that's been around in the law for years.
Senator Joyal: Thank you very much. It is quite enlightening. I am asking that question with purpose because in section 17 of the Conflict of Interest Code for Senators, the word "reasonably" appears. It says:
Neither a Senator, nor family member, shall accept, directly or indirectly, any gift or other benefit. . . .
— except compensation authorized by law, of course —
. . . that could reasonably be considered to relate to the Senator's position.
There is a nuance there. It is not exactly the test of the reasonable person put in a similar position, but essentially, it is given because the person is a senator. So it's not the appearance that is the test, as we have in section 11 of the act, which says "that might reasonably be seen to have been given to influence the public office-holder." In my opinion, the threshold in section 11 is much higher than the one in section 17.
In section 17, the threshold is rather low: "Could reasonably be considered to relate to the Senator's position." There is a nuance between the two, and I think it is important to understand it in both because what we have in Ontario and in B.C., as I see it, is more linked to the appearance of the perception of the public rather than the direct relation with the fact that that person is a senator.
Mr. Linden: I'm just trying to see if there is any significant difference between the language regarding public servants and elected officials in Ontario. You are parsing it very specifically, but I'll read it to you quickly, one and then the other.
Regarding public servants, "a public servant shall not accept a gift from any of the following persons" — and then they are listed — "if a reasonable person might conclude that the gift could influence the public servant when performing his or her duties to the Crown."
With respect to elected officials, it says: "A member of the Assembly shall not accept a fee, gift or personal benefit that is connected directly or indirectly with the performance of his or her duties of office." Then it lists the exceptions, but the exceptions don't include from friends.
Senator Cools: I was reflecting on some of the swapping of language. For example, nowadays civil servants are public servants, which is what political persons used to be called. Members of Parliament and senators used to be the men and women in public service. Now you have a situation where government officials' staff, civil servants, are now public servants, and members of the House of Commons are elected officials. Over the last many years, there has been a lot of alteration in language, which is also having an effect on the ground.
I've always understood that the dangers of corruption really come from those who have access and power to large sums of money or true influence in respect of actions; in other words, bringing bills and creating bills, ministerial functions, and that is why for some time most conflict of interest has followed the cabinet, where there is real influence.
It seems to me that the average member of the House of Commons and the average senator does not have much access to any influence, and I think that was some of the thinking 10 or 15 years ago, when many of us began thinking of these things. That was the thinking that was driving perceptions of senators at the time.
The entire focus should always be on the relation to corruption or potential corruption. Most senators and most House of Commons members have so little influence over what goes on in government that one has to be careful that we are not chasing our tails and creating huge bureaucracies. Then at the end of the day, it all has to do with whether there is a practice happening or a practice growing that would lead to real corruption.
We've heard of the old Pacific scandal and so on, but Canada has not had the kind of corruption in government that is known in other places. For example, I am told that in Europe, travelling executives normally now have an allocation of money for bribing if they are going into certain countries, whether the bribe is $10 to get your bags moved from here to there or whatever.
The focus should be at all times on corruption and the prevention of corruption rather than appearance. I could be wrong. Maybe that is the era. They tell me perception is the same as reality in today's community. But what you are looking for is corruption. You are looking for that individual who has access to the situations where they can actually have an outcome that is extremely beneficial or of great interest to someone else.
I'm asking whether or not the issue is the relationship to corruption or corrupting influences rather than the perception. Mr. Linden, I've known you for many years; I'm sure you know that the possibilities to imagination and appearance are endless, boundless. Imagination is infinite.
Mr. Linden: The title of this book is Corruption in America. It begins with looking at gifts, but that's the title. It is very powerfully written. You don't have to agree with everything the author says, but it's fascinating.
Senator Cools: It is a very interesting subject and an interesting book appearing at this time in history because I am told that our neighbours to the south are facing huge problems with corruption throughout their departments. I'm told it's huge. It's not a problem we face yet. It doesn't mean we should not be looking and preparing for it, but we should really stay focused on corruption.
Senator Gerstein: Thank you. This is the first time I have had the pleasure of attending the Standing Committee on Rules, Procedures and the Rights of Parliament, and I would like to recognize the three excellent witnesses we have had before us today. However, I would like to confine my remarks to one of them.
It may be of interest to the committee that I understand that this past weekend Justice Linden celebrated, along with his classmates from the University of Toronto law school, their fiftieth reunion. I make you aware of this event, because I do not view this as a conflict of interest for Justice Linden, notwithstanding the fact that in the class of 1964, fellow classmates included the Right Honourable Paul Martin and the Honourable Bill Graham, who to my recollection was the gold medallist of the class. Equally, I trust that members of this committee will not feel that I am in a conflict of interest in making these remarks, notwithstanding the fact that Justice Linden and I share the two most wonderful grandchildren. Thank you, Mr. Chair.
The Chair: That was excellent and the value certainly exceeds $200 or $500 for those grandchildren. Because Senator Smith will not be able to make it next week, he did have a question for Senator Day, if that is okay with you?
Senator D. Smith: I like keeping it simple. If this bill is passed, are we not increasing the number of situations, under which gifts may be given to legislators, who are dealing with legislation that could affect the gift giver? Are we not increasing the number of situations where this could happen?
Senator Day: I would say no. I would say that this is tightening up the rules with respect to gifts. There are still a lot of exceptions.
Senator D. Smith: With the "friend" —
Senator Day: With the word "friends" gone, it is not as broad a group of exceptions that now exists. The purpose for the proposed change in legislation is to make this a little bit more "rulely", in terms of who could be given gifts. We know who they are, or it could fall under some of the other exceptions. There are quite a few exceptions in here, in addition to "friends." Yes, it is public office-holders.
Senator D. Smith: The word "spouses" has been used quite a bit. My spouse is a judge and she is a Chief Justice of the Superior Court. If I were ever to have a conversation with her, about under what circumstances could somebody appearing before a judge give them a gift — it would be a ridiculous conversation. Are there fundamental differences here? You get my point.
Senator Joyal: I want, Mr. Chair, to acknowledge and thank Mr. Linden for the French version of the rules that have been circulated. I very much appreciate that. I know that Ontario has made a lot of efforts. The province has to be commended for making the legislation and rules available in Canada's both official languages.
Thank you, sir, I appreciate that.
The Chair: Thank you to the witnesses and all the senators today. We will adjourn for this week. Thank you.
(The committee adjourned.)