Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 46 - Evidence - June 7, 2018
OTTAWA, Thursday, June 7, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-50, An Act to amend the Canada Elections Act (political financing), met this day at 10:33 a.m. to give consideration to the bill.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome. We will resume our debate and study on Bill C-50, An Act to amend the Canada Elections Act (political financing).
We have the pleasure this morning of welcoming Lori Turnbull, Associate Professor, Dalhousie University. Appearing by video conference is Nelson Wiseman, Director, Canadian Studies Program, Professor, Department of Political Science, University of Toronto. It’s a pleasure to have you before us, Professor Wiseman. We have not seen you for a while. I think we’re going to have the benefit of your attendance in the days to come.
As you know, bills related to political financing are before Parliament, which is a subject you have developed expertise. We are interested to hear from you.
Professor Turnbull, I will invite you to make your opening statement and after that, I will turn to Professor Wiseman.
Lori Turnbull, Associate Professor, Dalhousie University, as an individual: Thank you to the committee for having me appear before you on Bill C-50.
The bill aims to increase transparency around access to political leaders at fundraising events. You obviously know the bill. Let me say a couple of things by way of summary.
It creates the concept of a regulated fundraising event, which is defined as an event organized for financial benefit, attended by a leader, interim leader or leadership contestant from the party for whom the event is organized and/or a minister or minister of state if at least one person is required to have made a contribution or total contributions of more than $200 in order to attend.
Conventions are not included but fundraising events at conventions are included. Contributor events, appreciation receptions that are part of conventions are not included. The bill imposes advertising requirements on political parties. Regulated fundraising events must be advertised prominently on a party’s website five days before the event until it starts. That advertisement has to include the date, time, location of the event, the leaders or ministers who will be in attendance, contribution requirements and contact information for the organizers.
The Chief Electoral Officer has to be notified five days in advance of the event. None of this applies during the election period.
When the event occurs, the party’s chief agent must provide the Chief Electoral Officer with a report consisting of — this is after the fact — the time, date, location, those who were in attendance, the financial beneficiaries. The persons who were in attendance also include their municipality, province and postal code. This all has to be filed with the Chief Electoral Officer within 30 days. After an election, everything that happened during the campaign comes in a single report 60 days after the fact. That’s a quick summary.
What I see are some of the major implications. The bill is about increasing transparency around fundraising events. The contributions aren’t the target because we already have that transparency. We require public disclosure over contributions over $200. What is becoming more transparent are the events themselves and the people who are in attendance. This is to mitigate, I think, the public perception that wealthy people can obtain secret and/or better access to decision makers by paying high prices to attend closed-door events at which they can lobby ministers, leaders and others on behalf of their personal or professional causes.
It can be argued the bill’s emphasis on transparency comes at a cost for privacy. The names and postal codes and municipalities — not your house, but a sense of who you are and where you are — must be made public even if you didn’t make a donation yourself to attend.
For individuals who do not wish to be associated with a political party, this can be a strong disincentive to attend. Public servants, for example, might decide not to attend such an event even if they really want to go because the risk of being seen to be political or partisan is not worth it. For other individuals, whose political affiliation is part of their public identity, there’s really no trade-off between privacy and transparency.
The bill defines regulated fundraising events as those attended by ministers, ministers of state or any leaders, interim leaders or leadership candidates for registered political parties. The advertising and reporting requirements apply equally and in identical form to the governing party, for example, when hosting an event where the Minister of Finance is present and a small party holding a fundraising event with a leadership candidate in attendance.
This isn’t a bad thing in and of itself necessarily but the committee may wish to consider whether this could pose an onerous burden on new parties trying to find their feet. It’s putting all of these particular people in the same category, so we could think through the implications. On some level, the implications of the bill won’t really be known unless and until it becomes law. It depends on how the public responds to the bill and whether the publication of these events will change or boost participation, whether the media will be inclined to cover these events with any regularity. We’ll see, or not, if there’s an uptake in terms of participation and attention.
It also depends on how the parties respond to it. There is kind of an escape clause in the sense that if there’s no mandatory contribution, the advertising and reporting requirements don’t apply. There would be political pressure on the governing party to abide by the spirit of the law it proposes and on their main opponents to follow suit. There might be lesser pressure on smaller parties, and I’m okay with that. There’s a bit of an internal waiting system in the bill where a party may decide, if the mandatory contribution was taken away, the rest doesn’t apply and that gives flexibility in terms of how the parties want to respond to the bill. I’ll leave it there. Thank you very much.
The Chair: Thank you very much, Professor Turnbull. Professor Wiseman, we will hear your presentation now.
Nelson Wiseman, Director, Canadian Studies Program, Professor, Department of Political Science, University of Toronto, as an individual: Thank you for your kind comments, Mr. Chair. It’s an honour to be appointed to the Senate and I congratulate all of you. It’s also an honour to be invited as a witness to your deliberations.
I speak to you as a political scientist. I’m not a lawyer or a political activist. I’m more interested in what the government does, quite frankly, than in trying to change what it does. I long ago concluded that there is little connection between success at fundraising and success at elections. A more elaborate reporting regime isn’t going to change that.
Let me cite a few examples.
In the 1993 election, the governing party spent $25 million and elected two MPs. An upstart party, which had never won a seat in a general election, spent just over $6 million and elected 52 MPs. It seemed the more money the governing party spent and the longer their ads ran, the deeper they sank in popularity. I can give more recent examples, just the last federal election, where the Conservatives raised more money in the third quarter of that year than any party had in Canadian history in any quarter. The NDP, in that quarter, raised more money than it ever had. The Liberals trailed both of those parties. Less than three weeks later, the Liberals swept into power, going from 34 seats to 184 seats, and the other parties, the Conservatives and NDP, were humbled.
Now, I teach a course on Canadian political parties, and I struggle to keep up with the constantly revised financing, expenditure and reporting regimes. The increased reporting requirements in this bill, for those aspiring, I believe, to constituency nomination, will only increase the stress and already onerous burden placed on volunteers who are the backbone of our parties, especially at the local constituency level.
Money has been referred to as the mother’s milk of politics. It seems to me that money is like grease; it’s going to eventually work its way through the bolts, however secure or rusty they are. Now, with social media, limits on spending are less effective. Reports on spending in the new world of technology aren’t helpful at all. For example, in the current Ontario election, there’s a third party, not a political party, called Ontario for Ontarians. It’s a mysterious group microtargeting voters on 10 different Facebook sites with attack ads. Yet, it has spent less than the $500 limit, so it hasn’t made a difference.
The original bill, I understand, was focused on reporting the fundraising events and advertising of fundraising events attended by ministers, party leaders and leadership candidates. Professor Turnbull, I think, gave you a good summary, so I needn’t go through that.
Since then, my understanding is the bill was also expanded to include concerns the Chief Electoral Officer had related to contests for party constituency nominations. He proposed defining more precisely the phrases “nomination campaign expense” and “nomination contest expense,” as well as the terms “leadership campaign expense” and “leadership contest expense.”
The Chief Electoral Officer wants expenses incurred by a campaign prior to the issuance of an election writ or the beginning of a leadership or local nomination contest to be regulated and reported. Now, these housekeeping elements — I assume they’re in the bill now — strike me as not of particular concern to the public. In my opinion, the experts on the issue of political fundraising are not lawyers or the Chief Electoral Officer. He’s constantly seeking to expand his web of his bureaucratic intrusions. The experts are the politicians and the political parties, like those in the House of Commons.
What is of public concern that triggered the introduction of this bill originally? It’s traceable to the controversial practice of cash for access or pay for play fundraising exposed byThe Globe and Mail. It revealed that elite fundraisers with cabinet ministers, usually held in private homes, went unpublicized. The proposed bill requires, as Professor Turnbull pointed out, these fundraisers be advertised on parties’ websites at least five days before they take place.
Quite frankly, I don’t think that changes very much the practice of pay for play or cash for access. Although I don’t think a $1,500 contribution leads to changing public policy. But getting to hobnob with ministers, then there’s that type of influence because you’re more likely to look favourably at people you know as opposed to people you haven’t met.
Now, this is the kind of bill on which I believe the Senate ought not to spend much time or devote much attention. It deserves rubber stamping with no changes, in my opinion. It deals exclusively with the activities of those pursuing elected office, something that applies to no one in the Senate at this time, to my knowledge, and something that has been passed by the democratically elected house. Since the landmark election finance legislation, introduced in 1974, the state has progressively intruded into the fundraising and spending activities of political parties, local constituency associations, candidates, and leadership candidates.
No sooner is legislation passed, then the Chief Electoral Officer, the media and often the opposition parties decry the existence of loopholes that frustrate stated public policy goals, such as transparency, openness, integrity, equity and accountability.
I don’t want to exceed my five minutes. I’ve got another few points, but one thing that did pop out at me is I wondered: Why does this legislation only apply to parties in the House of Commons? Why not all parties? We have, I think, 16 registered parties.
Why don’t I leave it there? I can respond to questions.
The Chair: Thank you very much, Professor Wiseman.
[Translation]
Senator Boisvenu: I don’t have many questions because they were mostly for the minister, and since she is not here yet, I will limit myself to one question.
Mr. Wiseman, when I hear you say that the Senate should not spend too much time studying this bill, this gives me the impression that this bill seems relatively futile to you. Is that the case?
[English]
Mr. Wiseman: Is the bill futile? Well, look, I believe there should be reporting requirements. I think that, inevitably, money is going to get through into the system and so will influence in other ways.
A lot of these events, these fundraisers in private homes, it’s good to shine light on them. It’s cheaper for companies and interests involved than hiring lobbyists; $1,500 is really very small change. On the whole, I expect that, in the new Parliament, after next year, we’re going to be right back at the table talking about further changes that have to be made, egged on by the Chief Electoral Officer, and issues that will arise during the campaign, as they already have, such as the new world of social media. You’re dealing with a problem that is intractable, I believe. I’ve come to this conclusion over a few decades of watching the regime.
I am critical — and I don’t think enough parliamentarians are, in my opinion, both in the House and the Senate — of the huge empire being created within Elections Canada. They’re constantly pushing for expanding what it is they’re monitoring. Let’s remember: Our parties are voluntary organizations. For people working at the constituency level, it’s very challenging to meet a lot of these requirements, and they’re behaving in good faith, generally.
[Translation]
Senator Boisvenu: Elections Canada has become quite a cumbersome bureaucracy. The other question I have concerns the application of this law during a campaign for the leadership of a party, which always happens outside of election periods in the majority of cases, except for rare exceptions. In what way can the Chief Electoral Officer receive a report on the leadership campaign of a party?
[English]
Mr. Wiseman: I’m glad you raised the issue of leadership campaigns. Look how ridiculous it is right now. The parties set limits on how much candidates can spend. I don’t know, half a million dollars, a million dollars, whatever. The person aspiring to become leader, the people running for the position, goes out. They run up all kinds of debts, and, in light of the contribution limits, it becomes impossible for them to pay back what’s required under the law.
We now have outstanding debts that have to be paid back by people who have run for all three of the parties in the House of Commons — I don’t know about the Bloc — for the NDP, the Conservatives and the Liberals.
Indeed, one of the candidates — I believe a member of your party — Kevin O’Leary, is planning to take Elections Canada to court. He’s not the only one who is in this impossible position.
What’s happening? Are the penalties being imposed? No. Are we going to throw these people in jail? They’ve been contesting these leadership races in good faith.
What’s the answer? Maybe the parties ought not to permit such high levels of expenditures for candidates running. Because it’s permitted, they go out and get the money. They want to win. You need money to fly around the country, does advertising, host events and so on.
This points out how we keep building rules and we can’t enforce them. If we do enforce them, it means putting heavy fines on these people. I don’t know if there are other penalties here. It just isn’t working.
I don’t know the ultimate solution. I like the idea of spending limits. I like the idea that people can only contribute $1,500. I’m not one of those who say the Quebec model is the best because it’s only $100. We’ve seen what happened in Quebec. Quebec was a pioneer in election finance legislation in Canada in 1963. We’ve had no shortage of scandals around money and politics in Quebec. We’ve learned a lot of lessons, as you know.
[Translation]
Senator Dupuis: I have a question for Ms. Turnbull, and then for Mr. Wiseman.
Ms. Turnbull, thank you for being here with us this morning. In a report entitled Transparent and Level: Modernizing Political Financing in Canada, published in March 2018, you set out the need to strike a balance between transparency and the protection of privacy. Do you have concerns about the provision in the bill that deals with the obligation to publish the names and addresses of people through their postal code?
[English]
Ms. Turnbull: Yes. When it comes to the contributions themselves, nothing changes. We already have reporting of contributions of over $200.
The actual presence of a person at one of these events, for some people, could be outside their comfort zone. I can imagine, honestly even as a professor, you don’t want to be seen as someone who is partisan or political if your objectivity is a big part of your market. You need to preserve that. It becomes a little difficult for you to feel as free as somebody else would, maybe, to go and participate in the events.
For everybody, it’s going to be a trade-off. For some people, such as a public servant, the trade-off might be outside their comfort zone where even if they want to go participate, they may not. Accessibility is not going to be open to every individual in an equal way.
There are other people, though, who wear their heart on their sleeve politically, and we know exactly what party they support, and there’s no cost to them at all as part of their public identity to be associated. I think it would affect people differently.
It would be the individual choice. It would be the person weighing, “Does it mean this much to me to show up or not?”
Some of the events, for instance, if the governing party is hosting a fundraising event and there is a minister in attendance, you might think lots of people might want to go and attend. It’s access to a minister, even if you’re not associated with that political party. You could make the argument, “I’m not really political. I’m not a Liberal. I’m going to the event because I really want to meet Bill Morneau.”
But if there is a third party — and by “third party,” I mean third place party — that is not offering that kind of access to a minister but you show up at their fundraising event, it could be seen more as you wouldn’t show up unless you were partisan.
The balance between transparency and privacy, it’s up to the individual to control. It’s your judgment. I think for every individual, the cost for some people will be too high.
[Translation]
Senator Dupuis: Based on the research you did, do you believe that citizens have waived a large part of their right to privacy because of their own exposure in social media? People reveal a great deal about themselves through everything they post on social media. Is that the case when you take part in political activities, for instance?
[English]
Ms. Turnbull: Yes. Ultimately, it comes down to the person making the decision. If you’re going to show up, then whatever. You’ve made a decision this is not a private but a public thing you’re doing. You might run into 50 people from work. A professor might run into students, or they might run into their dean. You’re making that decision. You know that in advance.
The whole concept of privacy and politics has become very much transformed with social media. Honestly, instead of a lot of people being worried about their privacy, people are maybe more worried about opportunities to express themselves and not be in any way punished or judged.
[Translation]
Senator Dupuis: Mr. Wiseman, you provided a good explanation of the fact that at the outset there was a desire to bring a certain transparency to the principle you call “pay to play,” that is to say access to the government political elite in exchange for financial contributions. Since, in your opinion, Bill C-50 has become a way of extending Elections Canada’s bureaucratic empire, are there any practical steps that can be taken to ensure greater transparency and to regulate that aspect, or is it completely unrealistic to believe that that can be done?
[English]
Mr. Wiseman: I want to respond to your concern about privacy and echo some of the things and expand on what Professor Turnbull said.
With respect to your second question, no, I think the bill is fine. We’ll have this reporting. I just don’t think it’s going to change very much. People will be more discreet about how money flows to the parties because this has been a loophole. We will have other loopholes. That’s why we hire lawyers and accountants.
Let me deal with the privacy issue. Not everyone in the world is on social media.
I want to share my own experience. I used to contribute to a political party. Once the media started calling me, I realized I had better stop contributing, because this information is public. Whatever I say as an analyst, like I’m speaking to you, I think I’m detached. I don’t think you know what party I support from what I’m speaking. They’ll say, “Well, your comment has been dismissed because you’ve contributed to such and such party.”
Let me give you an example that completely outraged me a few years ago here in the country. The father of a Canadian soldier who died in Afghanistan was interviewed by the media. He casually mentioned he wasn’t certain if Canada’s effort in Afghanistan was worth it in light of what happened. The response of a staffer for the government at that time was, “Well, we’ve got to dismiss his comments because he made contributions to the Liberal Party, which isn’t sufficiently supportive of our policy in Afghanistan.” That was outrageous. Here is a grieving father being dismissed because he contributed, I don’t know, maybe $200, which is perfectly legal.
With respect to social media, not everyone in the world is on social media. I’m not on Facebook or on social media — I don’t even have a cellphone — because I recognize that information, anything I put on there, which I think is personal, can be used.
Now, there are costs. I can’t communicate with you immediately on the phone. I have to find a landline or use my computer. These are decisions individuals make. Many politicians are now paying the price for their indiscretions.
Senator Gold: Welcome to you both. Thank you very much. I want to take advantage of your more general expertise and ask you a broader question than specifics about this bill.
My first question will be to you, Professor Turnbull. This bill addresses a certain loophole or issue in the current way we finance political parties and elections. Could you give us your thoughts based upon your experience? What model of political financing more generally would you encourage us — not in the context of this bill, but we’re going to be seized with this issue for some time — so what, in your view, would be the best way for to us finance political actions?
Then I’ll have a question for Professor Wiseman on social media.
Ms. Turnbull: It’s important to keep a balance between public and private contributions. Any system that is too heavy one way, you run into risks and problems on both sides. If you have a system that is too funded publicly, then you risk political actors not being responsive enough to voters. They don’t have an incentive to make sure they’ve got support from voters, people, groups and advocacy organizations for their ideas, because they know they’re going to get a certain pile of money coming in anyway.
However, if you make it too private — you don’t want to have a completely private political marketplace, because there’s a public and a state interest in ensuring a robust debate between actors. You don’t want money to control everything. There might be some interests that are incredibly important, and views you want to get out there, who can’t find as much money because there’s not as much money coming at it. That doesn’t necessarily mean the idea is not supported in the public; it means you don’t have the same financial capacity coming around to support it.
A balance between those two forms of funding is appropriate, particularly in Canada.
However, as we go on, the conservation is less and less about money. One problem is money is less reliable as a proxy for political expression, as we’ve already talked about. A lot of very impactful and resonant communication and expression can get out there at virtually no cost. We are not catching that. In some ways, this bill isn’t about money at all. There are elements but it doesn’t get at — and it’s not trying to get at — the digital communication and fake news issues, and click bait — those types of things that are really becoming much more in command of political discourse, particularly I think when it comes to younger voters. It’s much more difficult to figure out how to regulate that space.
That’s our challenge.
Senator Gold: Thank you. That really is my bridge to the question. Much has been written. Cass Sunstein’s #Republic speaks a lot about the impact of these echo chambers and bubbles on our perceptions and therefore our attitudes.
Professor Wiseman, when you look ahead, taking the point of the diminishing impact of money on the formation of political views or perceptions of reality, do you have any thoughts on how we might tackle that? I don’t mean perhaps in the context of this bill, which is quite modest in its aspirations, but more generally to preserve some measure of shared democratic space within which we, as citizens, can make choices politically?
Mr. Wiseman: I’m not as convinced social media has as much an impact as has been assigned to it. I’ll tell you when I think social media has a great impact: when it leaps from being these small conversations, these bubbles, into the mainstream media. Then it gets exposure.
Right now, we’ve got this fragmented audience in terms of attention to politics. Things like our newspapers, television and radio are still common elements. They don’t command as much attention as they did, because they themselves have been fragmented. Once upon a time, we only had the CBC. Then we had CTV. Now, you can go through a whole campaign and not even know there’s an election going on, because you’re just concentrated on a golf or food channel. There’s a broader fragmentation, whereas once upon a time, if it was on the national news, you had no choice; you had your TV on and that was on, because it was the only network.
Let me give you an example. In the 2008 election, the Bloc Québécois were well behind in the polls. This is the effect social media has when it jumps into mainstream media. The reason we had a 2008 election is because the Conservative Party had seen the polls and it indicated they could go from a minority to a majority based on winning more seats in Quebec. We had an election called, even though the legislation had the rule of fixed election dates. The Prime Minister ignored that.
What happened during the campaign such that the Conservatives didn’t win all those seats in Quebec the polls told them they would win? A couple of popular comedians in Quebec issued on social media a comedy piece really running down the Conservatives, associating them with the Americans and being totally unsympathetic to Quebec culture. The two comedians were pretending they were artists speaking to a committee like yours, and your committee insisting they speak in English.
About 400,000 people saw that video within a week or two. I didn’t know about it. I don’t think many people in English Canada knew about it. Then a story about it appeared in La Presse. Then, all of a sudden, Quebecers generally had picked up on this, well beyond the 400,000 that may have viewed this. Many of these so-called views are the same person going back and forth.
Another thing about social media — research done by Tamara Small of one of the Atlantic universities — Lori Turnbull would know where she is. I believe she’s still in Atlantic Canada. She pointed out that parties’ use of social media hasn’t really paid off for them. I think a lot of it is discounted. You recognize it’s spin. If the NDP cooks up something for social media, a lot of the designers of it look at it, and they try to circulate it but not many other people look at it.
It’s not that you’ve got people sitting around. Even me, and I’m a political junky — I’m going to see what the Conservatives put out today on social media. I’m going to see what the Liberals did. If it gets into the Globe and Mail, that’s how I’ll find out. That’s relevant.
Senator Mercer: Thank you to both of our guests. I always appreciate hearing from Professor Wiseman and his insight. I happen to share a fair amount of his opinions on this. Even though I’m sponsoring the bill, I’m not so sure how relevant amending the Canada Elections Act is, election after election. I think it’s always motivated by someone trying to quiet the opposition but not really fix anything.
I want to go to that point about this bill. This bill continues to talk about applying to people who are members of the House of Commons. The real question is: Could the Reform Party phenomenon ever happen again? If you exclude the parties who do not have members in the House of Commons, as the Reform Party was in the beginning, until they got one person elected — can that ever happen again, if we continue to write rules that only apply to parties with members of the House of Commons?
Ms. Turnbull: I worry about this too. I always worry about whether we are creating rules that protect the situation as it is and make it very difficult for new entries. I don’t know whether this bill really does that, in that it applies rules to the parties in the house and applies nothing to the ones outside the house. It’s not creating an extra step or an extra problem if you’re trying to get in.
However, since we’re talking about political scientists, there was the most fantastic article I’ve ever read. It was by Heather MacIvor. She’s at the University of Windsor. It was about how political parties form a cartel. It had to do with political financing. It was a very complex thing.
For our purposes, it was really about how do the parties who are in the house, although they appear to hate each other, work together to keep other people out.
I think that happens in lots of ways, but I don’t think this one does that.
Mr. Wiseman: Let me elaborate on what Professor Turnbull said. She used the term “cartel.” This theory goes back to the 1990s. I think it was Professor Cates who wrote about this and said established parties make deals among themselves to keep outsiders out. This happened in Canada. In the early 1990s, our election finance legislation said you could only be a registered party if you ran 50 candidates. There were some other requirements, but if you didn’t, you would have to forfeit all of your assets to the Chief Electoral Officer. The chair of the committee is familiar with this case, namely the Figueroa case. This was struck down by the Supreme Court of Canada, which hinted that maybe 12 people would be adequate to be a party because that’s the rule in the House of Commons. That was struck down.
It seems you can have a party of one. In the last election someone I know ran, and he was a party of one in a Toronto riding. He had his own party.
Is the cartel system working? This seems to be an example of it, but I’m not sure. Let me give you an example from just the last election. If the cartel theory was at work, we have limitations under the law that can you only spend so much during an election campaign. Our election campaigns are 37 days since we moved to fixed election date law. However, in the last election the Conservatives had $54 million. Under the rules, you would have only been permitted to spend about $25 million. The other parties managed to raise more or less that amount of money too, but the Conservatives had all this extra money that they wouldn’t be able to spend during the campaign. What did they do? They arranged to have the writ issued 77 days before the election so they could spend it all.
This undermined the idea that all three parties were in bed together on election spending. What I predict will continue is government parties will continue to try to use the rules to benefit themselves. When that Fair Elections Act was introduced, I didn’t read anything about that being a provision in the act. People were concerned; academics, the media, other parties said, “This was a flagrant attempt to try to suppress voters’ turnout because of the identification requirements,” which now the government is loosening up again. That’s another issue that I could speak to.
What happened? Voter turnout went up, and all that money the Conservatives spent didn’t seem to keep them in office. Clearly, the cartel theory didn’t work.
The system keeps evolving. I like the system. I want to come back to this point. Have a cap on how much can you spend. Have a cap on how much you can contribute, but don’t think the issue of political finance, or privacy, or money funnelled other ways isn’t going to get in there.
If can I give one other example. At some of these private events held in private homes — the cash-for-access story — we had people who were non-citizens. They knew they couldn’t contribute a cent, never mind $1,500. One of them contributed $200,000 to the Pierre Elliott Trudeau Foundation. How can you control that? What if someone such as a foreigner decides to contribute $100,000 to the Fraser Institute because it does a lot of research; or to the Woodsworth-Douglas foundation that does research for the NDP; or to the Canadian Centre for Policy Alternatives? That’s another element that’s developed in Canada over the last three or four decades. We never had these kinds of think tanks which are doing a lot of work outside of the mainstream academic community and are providing a lot of the intellectual and policy background and infrastructure for our political parties, over and above the research funds they’ve been getting for their offices since the late 1960s.
Senator Batters: Thanks to both of you for being here, Professor Wiseman and Professor Turnbull.
My first question is to both of you. Given that this bill does not apply to events during election campaigns, this could potentially lead to a situation where events the Prime Minister and his ministers, who have introduced this bill and are now seeking to have it passed, attend during the next election campaign next year would not be covered for fundraising events they hold. That is, during the time candidates raise the most money generally, need the most money and are the most vulnerable to people potentially trying to influence them.
I want to obtain your take on that fact scenario from both of you and get your perspective. Whether you think that is okay to leave as is or whether you think the election period exemption should be removed?
Ms. Turnbull: It doesn’t worry me a whole lot. We’ve got the transparency around the contributions and we’ve got a report that’s going to come out after the fact. I think what’s really missing during election periods is advertising. We’ll get the report on the back end anyway. What’s missing, opposed to ordinary time outside an election, is that five days in advance where we’re saying here is what’s going to happen.
I feel to the extent that people care, they’re watching anyway. They’re watching more closely. Where the leaders are is more transparent during an election. Generally, you can find the leader’s schedule and you know where people are.
Senator Batters: [inaudible] — minister?
Ms. Turnbull: That doesn’t bother me a whole lot. I know what you’re saying, but I feel it’s okay.
Senator Batters: Professor Wiseman, what do you think about that?
Mr. Wiseman: I don’t think that’s a big issue either. I think Professor Turnbull has articulated it. We don’t know the schedules of the leaders as it goes forward. In addition, I don’t think the amount of money makes that much difference. I think most of them have their money in the pot before the election campaign begins. Some don’t. Some go into debt. There’s no doubt about it. They are limited overall with respect to how much they can spend. So they raise more money during the campaign period than they did a month or two before and they’re taking advantage because this isn’t involved. I’m always interested in how the election is playing out. I’m less interested in the money than in the dynamics of the campaign and who is going to win.
The more I look at it, the more it seems the money factor just isn’t as big. Every party needs a certain amount of money. With the new technologies, it can get by with a little less. It’s just not that big an issue, for me anyway — not yet.
Senator Batters: What about the fact scenario of the Minister of Justice going into an election campaign and having a large fundraising event where it costs a substantial amount of money to get it through the door? There are a lot of people there who are lawyers and potentially interested in becoming judges after the campaign, if the Minister of Justice is potentially reelected. What about them getting her ear on that? Does that change the fact scenario for you at all? As someone who was married to an MP, I can tell you that, yes, you usually have a lot of your money in the bank prior to the election, but the campaign is the best time to raise money.
Mr. Wiseman: I would look at the polls. If I see the Justice Minister and his party is going to lose the election, I don’t have any particular incentive to go to his fundraiser because he’s not going to be the Minister of Justice two weeks from now. Think about the election right now in Ontario. What influence am I going to have with the Minister of Natural Resources? I don’t even think he’s going to win his seat.
Ms. Turnbull: That can be part of it. If you’re looking at an election where the current ministry is unlikely to be the ministry two weeks from now, then that affects lots of things and we’re less worried about it.
In terms of that kind of scenario, again, it’s the access not the contribution. The contribution limit is there, regardless if you show up or not. Are you going to use opportunities to track down the Minister of Justice and ask him for a job before it’s too late? Maybe.
Senator Batters: Also, this bill requires the disclosure 60 days after the election is completed. What is the current timeframe for that?
I’m wondering if that’s potentially an onerous timeframe. Isn’t it something like six months after the election?
Ms. Turnbull: To get your expenses back and be reimbursed? Yes, I think so.
Senator Batters: Professor Turnbull, I appreciated that you brought up the scenario in your opening statement about a leadership candidate from a very small party being equated to the Minister of Finance. That was something I described in an earlier committee meeting during this study. Could you speak more about that? I was thinking about having a leadership candidate who worked very hard but did not have a great result in a small party’s leadership race compared to the Prime Minister or a Minister of Finance. It seems a bit inappropriate to do that.
Ms. Turnbull: It’s putting a lot of different people who are in a lot of different scenarios in the same category. It’s saying if you are at an event where there’s someone running for the leadership of the third-place party, the reporting and advertising requirements and, then, the exposure to the people at the event is the same as if you’re going to a fundraising event that involves the Prime Minister, the Minister of Finance or Minister of Health.
To me, it ultimately seems the bill is voluntary whether parties participate. If you decide not to have contributions mandatory and it’s an open event and you can contribute or not, then you get around what the bill is asking parties to do.
There will be a lot of pressure on the government party, if the bill passes, to always make sure the spirit and intent of the bill will be observed. As a result, there will be a lot of pressure on the Conservatives to do the same thing, and probably the NDP too. But the smaller the party, I think there will be less fuss kicked up around it if they decide not to do the mandatory contribution and then have the whole bill kick into effect.
That’s okay because I think it’s built into the bill already that you can, in some situations, make a political calculation to take a pass and then deal with it later.
Senator Batters: Thank you very much.
Senator Frum: I would like to ask about something that Senator Carignan brought up with the officials we had here yesterday. Professor Wiseman, you just alluded to this.
It is possible, at an event where the tickets are $200, that an individual could buy seven tickets and that individual could be a Canadian citizen but he or she could bring six guests along who were non-citizens? The way it’s worded on page 5 of the bill under contents report, 384.3(2)(d), it’s required for the report, I guess for the CEO, to mention the municipality, the province and the postal code of people who attend, or their guests.
The way that’s worded, it implies a Canadian address. Obviously, if you’re American you don’t have a province or postal code, for example. I don’t know if there are any postal codes in China or Iran.
Should that be amended? What happens if you have a foreign address?
Ms. Turnbull: Yes. I agree it presupposes the person in question lives here. If you want to be able to identify everyone in attendance, and I think that’s the point, it’s possible you might want to change that so that requirement is given context for someone who doesn’t live in Canada.
Senator Frum: As Professor Wiseman said, this is not an abstract or theoretical idea. This has happened and there’s no reason to think it won’t continue to happen. Right?
Mr. Wiseman: Yes. This whole issue of foreigners being involved in our political system is much broader than this financing issue. We have Canadians who have been very actively involved in American elections. We are discomforted when we hear about Americans coming up here to be involved in our elections, but look, our political leaders have gone down to sit in on the conventions in the United States and get allied. We now have this issue of money coming to Canadian third parties that is showing up in different ways.
Your job is different than my job. You’re properly focused on the details of this legislation. I don’t have the grasp you have. I admit and I defer. I can see how you can pick things out of it.
I’m just stepping back like a bird, way up on top here, trying to get a macro sense of what’s happening. Whether this has changed or not, materially I don’t think it’s going to have much effect. I don’t disagree with Professor Turnbull.
Senator Frum: You could amend the bill so it includes the possibility of a foreign address. This is not going to happen with this bill, but should people be allowed to attend fundraising events if they’re non-citizens?
Ms. Turnbull: I think it would be too onerous to try to ensure. I would be satisfied by having the names. If we know who is there, I think that’s sufficient.
Senator Frum: Professor Wiseman, seeing as you want to do big-picture questions, can I ask you one? We had a situation where, two years ago yesterday, the Chief Electoral Officer, Marc Mayrand, announced that he would step down six months later. In June 2016 he said he would step down in December 2016, and he did.
The government then appointed an interim CEO who was in that role for 18 months until that person was made the permanent CEO. There was an 18-month period where we had an interim CEO.
In terms of the impact on our democratic and electoral system, what do you think about such a lengthy process, particularly when the person they appointed on January 1, 2017 is the same person they then appointed in May 2018? What do you think about that?
Ms. Turnbull: I think because it ended up being the same person, the disruption, such as there could be, would ultimately have been less.
Senator Frum: Could you argue that, because it was the same person, we had an 18-month period where we had a CEO who was serving at the pleasure of the government, which is not how the CEO is supposed to be treated?
Ms. Turnbull: I don’t know why that was the case.
Senator Frum: Does it trouble you, as an expert in democratic systems?
Ms. Turnbull: It would trouble me if that was the case all the time, yes. In this particular case, Perrault had been with the institution a long time. It seemed to me this person was the obvious choice for the interim role once the CEO resigned or retired, whatever the right word is in this case.
It didn’t concern me a whole lot but if, as a rule, we are slow on these appointments, then yes, that’s a problem.
Mr. Wiseman: It raised my eyebrows. I thought, “What’s going on here? Is the government serious about Elections Canada?” Marc Mayrand made it very clear when he was going to be stepping down.
This isn’t just with this office. Remember, this is an officer of Parliament. The same thing has happened with the Commissioner of Official Languages. It just dragged on and on. Graham Fraser knew he was leaving. Why did it take so long? I think the government’s feet, whichever party is in power, should be held to the fire in the House of Commons.
I didn’t realize it, but I guess it makes sense that, in my understanding, the interim people appointed to these offices are agreed to by consensus. All the parties should agree who is going to be an independent officer reporting to the Parliament of Canada.
From your smile, I take it you think this has been abused. I think that’s dreadfully unfortunate.
The Chair: I want to let you know the other witnesses have arrived.
Senator McIntyre: Thank you both for your presentations. My question has to do with penalties for non-compliance with the obligations set out in Bill C-50.
In other words, are those penalties enough to deter political parties and event organizers from circumventing the law? Looking at the act, the bill calls for a $1,000 fine. There are no offences in the Canada Elections Act with a fine as low as $1,000. Shouldn’t the fine be increased to at least $5,000, which is the same amount levied for certain offences under the act?
Ms. Turnbull: In these sorts of cases, I don’t know if it would make a difference between $1,000 and $5,000. We have had instances where people appeared to be in violation of these sorts of laws, the penalty comes up, they pay it and it is really not a huge deal.
I think if there’s going to be a cost here, it’s going to be ultimately political. It’s up to the voters and people who care about this to put pressure on political parties to abide by the spirit of the law, if that’s what people want. I don’t think monetary penalties make much difference in this case.
The Chair: Professor Wiseman, your thoughts?
Mr. Wiseman: I’ll be brief. Your other guests are here.
I agree with Professor Turnbull. I don’t think there’s much difference between $1,000 and $5,000, especially if the violation involves maybe $100,000 or something. I’ve noticed Elections Canada doesn’t pursue a lot of these cases. Why are we not pursuing? — I’m not saying we should — the leadership candidates for all of these parties?
In most cases, Elections Canada is looking not to prosecute. They’re looking to make sure you don’t behave this way again in the future. It doesn’t keep anybody else from behaving that way in the future, or so it seems to me.
We have these laws, but they’re not enforced, in effect. In very few cases. We have the Del Mastro case, the in and out scandal. In most cases, they’re very happy to get a letter from Shelly Glover, when she was minister, that she’s now complying and so on.
The Chair: Thank you, Professor Turnbull, for having made yourself available. Your contributions are very much appreciated by all of us around the table.
Professor Wiseman, as you know, when I read your articles, comments or contributions to public debate, it’s very stimulating, sometimes provocative. It keeps us thinking about the state of democracy in Canada. Thank you very much for your contribution.
[Translation]
It is my honour to introduce to you Mr. Mario Dion, Conflict of Interest and Ethics Commissioner of the House of Commons. He is accompanied by Ms. Martine Richard, Senior General Counsel. Thank you for having accepted our invitation to take part in our study of Bill C-50, which amends the political financing provisions of the Canada Elections Act. We will listen to you first, Mr. Dion.
Mario Dion, Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner: Thank you for inviting me to appear before you today to contribute to your study of Bill C-50 in relation to political financing.
I am accompanied by Martine Richard, Senior General Counsel. She is also responsible for the investigations team. Since I was only appointed five months ago, I may call on Ms. Richard to answer certain very specific questions with regard to the enforcement of the act and the code.
[English]
As you know, Bill C-50 requires registered political parties to publicly advertise political fundraising events attended by ministers, party leaders or leadership contestants, where the cost to attend is more than $200. They would have to publicize such regulated fundraising events in advance by posting the prescribed information prominently on their website no fewer than five days prior to the event.
The bill also creates a reporting regime. Political parties would be required to submit a report within 30 days after holding the event on any regulated fundraising event to the Chief Electoral Officer, who would then publish it. The report would identify the party leaders, interim leaders, leadership candidates or cabinet ministers who attended the event. It would also identify other attendees, as well as each person or entity that organized the event.
[Translation]
Bill C-50 does not directly impact the two regimes that our office administers. One is the Conflict of Interest Act for public office holders, including ministers, parliamentary secretaries, ministerial staff and most other governor in council appointees. The other is the Conflict of Interest Code for Members of the House of Commons. So, there is no direct impact in that regard.
The proposed legislation does, however, apply to some individuals who are covered by those regimes. Some of the same people could be covered by Bill C-50 and by the code or the act. Cabinet ministers are subject to the Conflict of Interest Act and to the Conflict of Interest Code for the Members of the House of Commons. So both texts apply to ministers, parliamentary secretaries, and ministers of state. There are no ministers of state at this time, but there could be at some point in the future.
[English]
Any leadership candidate, party leader or interim party leader who is a member of the House of Commons is also subject to the code. We have an overlap between some people vis-à-vis the bill and vis-à-vis the two instruments my office manages.
[Translation]
When I did a little research, I saw that my predecessor testified before the House of Commons Standing Committee on Procedure and House Affairs during its study of this bill last October, and expressed support for its direction, given that it seeks to increase transparency around political fundraising events. I hold a similar view of the amended version of the bill that is before this committee.
Transparency is crucial to maintaining Canadians’ trust in the conduct of their elected and appointed public officials. Its importance is acknowledged in one of the principles of the Conflict of Interest Code for Members of the House of Commons. It states that members are, and I quote:
. . . expected to perform their official duties and functions and arrange their private affairs in a manner that bears the closest public scrutiny. . .
For public scrutiny to occur, there must be access to information concerning activities, assets, debts, et cetera. I believe that making party leaders, interim leaders, leadership candidates and cabinet ministers subject to an advertising and reporting regime for regulated fundraising events will contribute to transparency and trust.
[English]
Bill C-50 is timely as public trust appears to have been eroded somewhat by several political fundraising events that received a high level of media attention in recent years. Variously described as cash-for-access or pay-to-play fundraisers, they gave paying attendees the opportunity to meet featured ministers or party leaders.
My office received complaints from some Canadians about a few of those fundraisers. We received several requests, as well, for investigation. We did not, however, have much scope to act.
The Conflict of Interest Code for Members of the House of Commons does not mention, does not prohibit, fundraising at all.
The Conflict of Interest Act contains only one provision that directly addresses public officeholders’ participation in fundraising activities, and it does not distinguish between political and charitable fundraising.
As my predecessor, Mary Dawson, explained before the committee of the other place, in October of last year, section 16 of the act reads:
No public office holder shall personally solicit funds from any person or organization if it would place the public office holder in a conflict of interest.
Two elements must exist to establish a contravention of section 16. First, a public officeholder, a minister, for instance, must have personally solicited funds or asked, personally, someone else to do so on his or her behalf. That’s the first element of section 16. There must be a personal involvement in the solicitation itself, through another person or directly.
Second, it must be established the personal solicitation would place the public officeholder in a conflict of interest, as defined in section 4 of the Conflict of Interest Act.
Another provision of the Conflict of Interest Act relates to political fundraising. Paragraph 11(2)(a) establishes an exception to the gift rule to allow for gifts permitted under the Canada Elections Act. The gift rule prohibits public officeholders and their family members from accepting a gift or other advantage that might reasonably be seen to have been given to influence the public officeholders in the exercise of an official power, duty or function.
[Translation]
Violations of sections 11 and 16 and other sections of the Conflict of Interest Act that are not specifically about fundraising could occur, but only at a later date. When a person who made a donation seeks a particular outcome from a minister, parliamentary secretary or a member of ministerial staff, those provisions would not apply when the fundraiser takes place, or when stakeholders make the required donation, but they could come into play later. For example, section 6 of the Conflict of Interest Act prohibits any public office holder such as a minister, parliamentary secretary or any other public office holder, from making an official decision or participating in making such a decision if they know or should reasonably know that in doing so, they would be in a conflict of interest.
Under section 7 of the Conflict of Interest Act, which deals with preferential treatment, the issue is not who a public office holder may speak with at a fundraising event, but whether that person is given preferential treatment after the fact. Section 7 is however very limited in scope. It does not prohibit all preferential treatment, only preferential treatment based on the identity of the person who makes the intervention.
All in all, this is a bit complex. I am trying to simplify matters regarding the Conflict of Interest Act as much as possible in a few minutes. We will be able to answer your questions afterwards.
Overall, I believe Bill C-50 could have a positive impact by increasing transparency around fundraising events, which could help prevent ethical issues from arising. It could also help our office — this is where Ms. Richard’s work comes in — to administer the Conflict of Interest Act in cases where it is alleged that a stakeholder who attended a regulated fundraising event later received a benefit from a minister featured at the event. In fact, the adoption of this bill would provide us with another reliable source of information as to the connections that could have existed between a public office holder and a person or entity.
I will be happy to answer any questions you may have.
The Chair: Thank you, Mr. Dion.
[English]
Senator Frum: Just to understand how the chain of events might work, if a leader, a Prime Minister or a cabinet minister, was found guilty under Bill C-50 and had paid the $1,000 fine, at that time, then, would your office get involved afterwards, or could you possibly be involved at the same time? Or could you be involved first? What would be the order of events?
Mr. Dion: Guilty of not making a declaration or not publicizing before the fact or declaring after the fact?
Senator Frum: Correct.
Mr. Dion: It would not trigger any breach of relevance to us. It’s entirely self-contained within Bill C-50, I think, subject to what Ms. Richard might add.
Martine Richard, Senior General Counsel, Office of the Conflict of Interest and Ethics Commissioner: That’s correct. We would be looking at is whether there was a contravention of section 16 of the Conflict of Interest Act. That requires the public officeholder, minister or parliamentary secretary would have solicited funds personally. We’re looking at a very particular set of facts.
Senator Frum: In the event somebody was found guilty under Bill C-50 in this provision, you’re saying it would actually trigger nothing in your office because —
Mr. Dion: Unless there is a complainant or unless, through publicly available information, it was shown that the minister — let’s say it’s a minister — personally organized the event or caused the event to be organized. Then, there would be a potential contravention of our statute, section 16.
Senator Frum: Yes, but that would happen after. Or could it happen simultaneously?
Mr. Dion: It could happen. The minute somebody organizes, section 16 is triggered, personally organizing. There has to be evidence of personal involvement. There has to be evidence of personal involvement and activity having caused a conflict of interest, i.e., something happened afterwards that placed somebody who attended the event in a better position than he would have been without attending the event, grosso modo.
Senator Frum: Okay. On the Prime Minister’s website, he has declared his own conflict of interest standards, which say that ministers and parliamentary secretaries must avoid conflict of interest, the appearance of conflict of interest and situations that have the potential to involve conflict of interest. Are these rules the same as those in the Conflict of Interest Act? If not, do you recommend they be added to the House of Commons Conflict of Interest Act?
Mr. Dion: They are not the same. It’s a political instrument. It does not have the force of law per se. Of course, as the Commissioner of Ethics, I will always foster the best possible complete coverage. Therefore, subject to a detailed examination, it would be worth looking at as to whether, with this instrument of 2015, there are aspects that are additional or different. Sometimes the angle is different. It would be worth looking at because, to me, the most complete Conflict of Interest Act would be the best Conflict of Interest Act.
[Translation]
Senator Dupuis: Welcome, commissioner. To your knowledge, why does the members’ code not mention fundraising activities?
Mr. Dion: Unfortunately, I can’t answer you because I really don’t know. It was adopted in 2004 and was amended a few times since. I don’t know if Ms. Richard knows why no mention is made about political activities. I don’t know the genesis of all that at all.
Senator Dupuis: Will the fact that Bill C-50 contains requirements for very specific reports concerning those who participate in political activities, including their address, help you in enforcing the Conflict of Interest Code?
Mr. Dion: I think it would be a mine of potentially very interesting information, especially to do cross-checking — I think that’s the correct term — in the context of an investigation or decision. I have the power of launching an investigation on my own initiative when I have reasonable and probable grounds to believe that there has been a breach of the act or the code; it would thus be very interesting to know who spoke to whom and when and how. That would be wonderful.
Senator Gold: Welcome, commissioner.
[English]
Mr. Dion, towards the end of your remarks, you stated you believe the bill would have a positive impact and it could help prevent ethical issues from arising. Could you talk to us more about what the ethical implications are of these fundraising activities attended by members of the cabinet and other party leaders?
Mr. Dion: It’s about creating a positive view, a decision-maker making or participating in a decision with undue influence by some prior treatment that he has received from another individual, such as a gift, contributing, doing activities, et cetera. This potentially favourably predisposes the politician or minister when he or she has to make a decision in the course of their duties. That’s what conflict of interest constitutes, trying to unduly favour another person because of an acquaintance or a positive predisposition.
[Translation]
Senator Gold: Perhaps I did not express myself well, so I will repeat my question in the language of Molière.
Mr. Dion: I think your question was clear.
Senator Gold: I’d like to understand the distinction. I have attended events where a minister or a prime minister was present. I remember one event where there were business men and women who were unanimous in saying that this or that law should be amended, not to benefit a company or even a given sector, but just in general. Do you understand the distinction I am trying to make? This was an open discussion with a decision-maker in a private home, about a political issue of general application. Would that be a conflict of interest situation? I don’t think so.
Mr. Dion: That is right.
Senator Gold: However, I don’t understand how this can transform into a conflict of interest situation later. Where is the ethical implication?
Mr. Dion: It is what happens later that matters, and not the fact of having attended the event. It is what happens following the event with the minister, which could be connected to a subsequent decision.
The definition of “conflict of interest” in a law of general application excludes two things expressly: a decision of general application, or a decision that affects a vast category of people. It could concern all Canadians, or a large category of persons. As an example, lawyers, the elderly or children constitute categories of persons who are excluded from the definition of “conflict of interest.” They do not represent a private interest.
Senator Gold: Do the vast majority of cases explicitly imply the vast majority of activities?
Mr. Dion: There is no problem.
Senator Gold: No problem; thank you.
Mr. Dion: Our work is to examine the facts on case-by-case basis in order to determine whether there is a problem or not.
Senator Gold: Good.
[English]
Senator McIntyre: Thank you both for your presentations. The bill makes all party leaders and leadership contestants — and not just ministers — subject to the new advertising and reporting regimes. The bill does not cover parliamentary secretaries, as you’ve noted in your brief, Mr. Dion. Yet parliamentary secretaries are subject to the Conflict of Interest Act as reporting public office-holders, just like the Prime Minister and ministers. Could you explain why parliamentary secretaries are not included in Bill C-50?
Mr. Dion: No, I couldn’t. First, I was not involved in the development of Bill C-50. Second, I guess it’s a policy decision made by the minister and by cabinet when they approved the tabling of Bill C-50. They made the decision not to include. I don’t know why they made such a decision.
Senator McIntyre: I’m asking this question because we could have situations where parliamentary secretaries who knew or should have known that funds were being solicited by their staff in circumstances that would definitely place them in a conflicting situation; I’m sort of worried about that.
Ms. Richard, would you like to comment on that?
Mr. Dion: There is a disconnect between Bill C-50 as currently drafted and the Conflict of Interest Act because parliamentary secretaries and ministers of state are covered in my act but are not covered in the bill. It’s a disconnect. Whether it’s a wilful disconnect, I frankly don’t know.
Senator McIntyre: That’s a situation that should be corrected, as far as I’m concerned.
Senator Batters: Thanks very much for coming here today, Mr. Dion. In the last paragraph of your written statement — I believe you repeated it when you were here today — you were talking about how this particular bill could also help our office administer the Conflict of Interest Act in cases where it is alleged a stakeholder who attended a regulated fundraising event later received a benefit from a minister featured at the event.
Because of that particular paragraph, do you think it’s problematic that Bill C-50 excludes fundraising events held during election campaigns?
Mr. Dion: I did note that does exclude those events. Ministers still have the same obligations in relation to the Conflict of Interest Act during an election campaign. It remains until such time as the minister ceases to be a minister. I’m not concerned about the fact that during the electoral campaign, Bill C-50 would not apply, the obligation to advertise the event, the obligation to report on the event. Of course, we would be deprived of a source of the information I was talking about, but apart from that it’s of no concern to me.
Senator Batters: It could be a significant source.
The example I used with the previous witnesses is if the Minister of Justice, during an election campaign, holds a fundraising event for that minister’s riding association to raise money for the re-election campaign. In the course of that event, there are many lawyers there, for example. It could be another minister, or people who were in attendance at these fundraising events who could potentially have dealings with the Government of Canada after the election is over.
That could be a significant source of information?
Mr. Dion: Yes. We can still find out, in spite of the fact Bill C-50 doesn’t apply during a campaign we can still find out. Bill C-50 is not in effect and we did find out some of them in the past. We’re just being deprived of a prospective source of information that, if Bill C-50 is adopted, will be of assistance. It would be better if coverage was 100 per cent of the time but it’s much better than not having anything, as we currently have. We rely on the media essentially or —
Senator Batters: That’s what I think you’re talking about is a situation where the media found out about a particular event. Sometimes they find out events, many times they probably do not.
Mr. Dion: Sometimes they don’t. We also get correspondence, phone calls, and emails. Most of the time by people who identify themselves, but sometimes anonymously. We have multiple sources of information.
Senator Batters: Mr. Dion, when you were speaking earlier about personal involvement. That is what is required from the minister’s point of view for you to become engaged. That would also include the sort of scenario I’m talking about where a Minister, who is also an MP, and their electoral district association hold a fundraising event to raise money for that minister’s re-election campaign. That’s correct? That would fall within the scope of personal involvement?
Mr. Dion: It would be personal involvement. There’s a report on that, I believe.
Ms. Richard: You would have the minister having participated in the organization of the activity. As an example, there was the Glover report which Madam Dawson published in 2014. The allegation was the minister had organized a fundraiser. The facts showed the fundraiser had been organized by the EDA. The minister had not been involved in the compilation of the list of invitees. Looking at the wording of section 16, which requires the minister personally solicit, Madam Dawson found she had not contravened section 16 of the act.
Senator Batters: In that case was it that particular minister’s own electoral district association but because she personally had no involvement?
Ms. Richard: No involvement. Yes, it was her EDA.
Senator Batters: Thank you very much.
[Translation]
The Chair: Mr. Dion, is the concept of the appearance of a conflict of interest not just as important to maintain public trust in the equity that should normally be the guiding principle of ministerial conduct? Would the fact of placing oneself in a situation where the appearance of a conflict is created not allow you to cover the ministers of state and parliamentary secretaries? In the Senate code, the principle is not just conflict of interest, but the appearance of conflict of interest. Often, the appearance is more common than conflicts of interest as such. We want to maintain the principle of transparency, which is that everyone has an equal opportunity to participate in democracy, and money should not determine the capacity to influence power. That is the basic element that is at issue. How will the appearance of conflict of interest figure in your application of the House of Commons code, in connection with Bill C-50?
Mr. Dion: I am happy that you asked that question. The Conflict of Interest and Ethics Commissioner has the mandate of applying the act and the code. Unless a breach respects the criteria of what is prohibited by the code and the act, my role is to determine whether or not there was a violation, following an investigation. The notion of appearance is not mentioned in the code or the act. This makes my role more restricted and more difficult. Those are the tools I must work with. I have no authority aside from that which is granted to me by the code or by the act. It’s similar to criminal matters: unless you meet all of the conditions of an offence, there is no offence.
The Chair: Senators are governed by a standard that is probably the one that covers the greatest number of situations. Section 42 of the code, for instance, allows senators to ask for the advice of the Ethics Officer — your counterpart — if they participate in an activity organized by a non-profit organization, if this runs the risk of creating the appearance that that organization will be given preferential treatment. The Ethics Officer recommends that senators avoid placing themselves in positions that can create the appearance of conflicts of interest. So the standard is much stricter than that of the House of Commons.
Mr. Dion: That’s wonderful. I explained to a group of interns from the Legislative Assembly of British Columbia this morning that a very important part of our role is to provide advice. We often receive calls from ministers or ministers’ staff asking us for advice. That is exactly the situation you described. Often we advise them not to do certain things, but appearance does not create a conflict. The advice is rather related to subsequent decisions the persons involved could participate in if they want to preserve objectivity and appearances regarding eventual decisions, whether it is a matter of assisting, being seen to be or being associated with an activity. We provide advice and the person is not obliged to take it. However, if he decides not to follow the advice, he can expose himself to problems if a complaint is filed or if there are facts indicating that an investigation should be opened. We often advise people not to do certain things, even if the act and the code do not talk about the appearance of conflicts of interest as such. Did you want to add a comment, Ms. Richard?
Ms. Richard: In the code and not in the act —
Mr. Dion: For members of Parliament.
Ms. Richard: There are principles that apply according to which the members must take the necessary steps to deal with their personal affairs in order to avoid real or predictable conflicts of interest.
Mr. Dion: It is in the preamble.
Ms. Richard: It is set out in the principles of the code governing the members, but that wording does not appear in the act.
The Chair: In the substantive provisions of the code.
Ms. Richard: Yes, that’s it.
Mr. Dion: I hope, Mr. Chair, that this answers your questions. There is never any complete or direct answer.
The Chair: I was trying to identify the gaps in Bill C-50 with regard to ministers of state and parliamentary secretaries who would not be covered by specific provisions of the code. We could oblige a parliamentary secretary or minister of state to avoid placing themselves in a situation that could give the impression of a conflict of interest.
Mr. Dion: You must not forget that a parliamentary secretary does not have any decisional power. Only ministers and the cabinet may exercise such powers.
The Chair: Of course, but parliamentary secretaries are so close to the ministerial function. I could give you examples for having occupied that position myself. The fact remains that the appearance can be created because he or she takes part in the exercise of power. He does not sign a document on behalf of the minister, but he is very closely associated with the exercise of ministerial functions.
Mr. Dion: We have 18 advisors in my office. I am not involved in all of the advice that is provided. When I am involved, I adopt a rather orthodox and restrictive approach. I am very cautious. When it is a matter of deciding whether or not to do something, in general I advise against taking the action.
The Chair: You apply the theological principle of “when in doubt, abstain.”
Mr. Dion: Yes, because there is nothing to be gained.
The Chair: Ms. Richard and Mr. Dion, thank you for making yourselves available to contribute to our study and answer our concerns regarding Bill C-50. We hope to see you again soon.
(The committee adjourned.)