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1 2 3 TORONTO COMPUTER LEASING INQUIRY 4 GOOD GOVERNMENT PHASE 5 6 7 ******************** 8 9 10 BEFORE: THE HONOURABLE MADAM JUSTICE DENISE BELLAMY, 11 COMMISSIONER 12 13 14 15 16 Held at: East York Civic Centre 17 850 Coxwell Avenue 18 Toronto, Ontario 19 M4C 5R1 20 21 ******************** 22 23 24 January 21th, 2004 25
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1 APPEARANCES 2 3 David Butt )Commission Counsel 4 Daina Groskaufmanis (np) ) 5 Zachary Abella ) 6 7 Linda Rothstein (np) )City of Toronto 8 Andrew Lewis ) 9 10 Janet Smith )Registrar 11 Carol Geehan )Court Reporter 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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1 TABLE OF CONTENTS 2 Page No. 3 4 Presentation by Mr. Duff Conacher 5 and Mr. Sean Moore 5 6 7 Presentation by Mr. Howard Wilson 116 8 9 Certificate of Transcript 194 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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1 --- Upon commencing at 10:00 a.m. 2 3 THE REGISTRAR: The Inquiry is now in 4 session. Please be seated. 5 MADAM COMMISSIONER: Good morning. 6 MR. DAVID BUTT: Good morning, Commissioner. 7 This morning we're privileged to have with us two (2) 8 individuals who, based on, at least my -- my brief prior 9 contact, will be a lot -- assist you, Commissioner, with some 10 very thoughtful and differing observations on the whole 11 process of -- of outside persons playing a role in government 12 decision making and I -- I've tried to choose that language 13 deliberately in terms of keeping the issues broad and not -- 14 not judging things in -- in advance. 15 And just alphabetically we have Mr. Duff 16 Conacher and Mr. Conacher, I understand that you're the 17 coordinator of Democracy Watch. Can you tell us what 18 Democracy Watch is, please? 19 MR. DUFF CONACHER: Certainly, Democracy 20 Watch is a non-profit, non-partisan citizen advocacy group 21 that focusses on the issues of democratic reform, government 22 and corporate responsibility. 23 And we currently have eight (8) campaigns in 24 those areas on issues such as government ethics, money and 25 politics, corporate responsibility, bank accountability,
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1 voter rights, and we usually work with other citizen groups 2 in coalition, and have been in existence for now just over 3 ten (10) years, mainly focussed on the Federal Government, 4 but also intervening at the Provincial and the Municipal 5 level, as various issues have arisen across the country. 6 MR. DAVID BUTT: And -- and I understand as 7 well, Mr. Conacher, that you've worked very broadly in this 8 field as a researcher, community organizer, and -- and 9 consultant; is that -- is that right? 10 MR. DUFF CONACHER: Yes, that's -- that's 11 correct. 12 MR. DAVID BUTT: And you organized the first 13 chapter of the Quebec Public Interest Research Group at 14 McGill University, and were a member of the board of 15 directors of the Ontario Public Interest Research Group from 16 '88 to '91? 17 MR. DUFF CONACHER: Yes. 18 MR. DAVID BUTT: And of course you're also a 19 graduate of the U of T Faculty of Law, and you were called to 20 the bar of Ontario? 21 MR. DUFF CONACHER: Yes. 22 MR. DAVID BUTT: And you've written with Ralph 23 Nader, and Nadia Milleron, a book entitled, Canada's Firsts, 24 Ralph Nader's Salute to Canada and Canadian Achievements, and 25 More of Canada's Firsts, Another Collection of Canadian
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1 Firsts and Foremosts in the World? 2 MR. DUFF CONACHER: Yes, that's correct. 3 MR. DAVID BUTT: And in addition, I understand 4 you've authored more than twenty (20) reports on Government 5 and corporate accountability issues? 6 MR. DUFF CONACHER: Yes, indeed. We -- with 7 each of our campaigns we initiate the campaign with a report, 8 where we look at what various jurisdictions have done on the 9 issue, and also researching the extent of the problem as we 10 see it in -- in Canada, and then setting out our -- our -- 11 the platform of the campaign and a series of recommendations 12 in those reports. 13 So, that's -- that's where those -- the reason 14 that those reports have been created over the past decade. 15 MR. DAVID BUTT: And thanks very much, Mr. 16 Conacher, and then, Mr. Moore, who is with us also today. 17 Mr. Moore, you're a partner with Gowling LaFleur Henderson 18 LLP. And in addition to obviously your legal role in the 19 partnership there, you are also a public policy advisor, and 20 have, I understand, more than twenty-five (25) years of 21 experience in public policy and organized advocacy, relating 22 to Government affairs? 23 MR. SEAN MOORE: Well, yes, though I -- I 24 should clarify, I'm not a lawyer, I'm a partner at Gowling's, 25 without benefit of a law degree.
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1 MR. DAVID BUTT: Thank you. So your focus 2 then is -- is exclusively on the public affairs area, and 3 public policy consulting? 4 MR. SEAN MOORE: There are -- there are two 5 (2) -- there are two (2) parts of what I do through the law 6 firm, our law firm does public policy advocacy, i.e., 7 lobbying for private sector clients, for non-profit 8 organizations, for other Governments and we also through 9 another affiliate of our firm, do public policy work for 10 governments, for -- for public sector organizations both here 11 and abroad, and I'm involved in that as well. 12 MR. DAVID BUTT: Okay. And -- and just in -- 13 in furtherance, that work, you've worked with a variety of 14 clients, small businesses, community based interest groups 15 and -- and people on the Government side as well, both 16 Federal, Provincial and foreign Governments? 17 MR. SEAN MOORE: Yes. 18 MR. DAVID BUTT: Trade and professional 19 organizations? 20 MR. SEAN MOORE: Yes. 21 MR. DAVID BUTT: Now, you've also worked in 22 Washington D.C. as -- as a Government Relations Advisor? 23 MR. SEAN MOORE: I did. 24 MR. DAVID BUTT: And so you have experience 25 then on advising on both State and Federal issues in the
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1 United States? 2 MR. SEAN MOORE: I do, though that's getting a 3 tad dated right now. 4 MR. DAVID BUTT: But in terms of what isn't 5 dated, you do write a bi-weekly column on advocacy in the -- 6 in the Hill Times? 7 MR. SEAN MOORE: Yes, I do. 8 MR. DAVID BUTT: Okay, and that's a weekly 9 newspaper that comes out on politics and government? 10 MR. SEAN MOORE: Yes. 11 MR. DAVID BUTT: And you're a member of the 12 Advisory Board of Carlton University's Faculty of Public 13 Affairs and Management? 14 MR. SEAN MOORE: Yes. 15 MR. DAVID BUTT: And -- and have recently 16 joined the Board of the Institute for Media Policy and Civil 17 Society? 18 MR. SEAN MOORE: That's correct. 19 MR. DAVID BUTT: Now -- 20 MR. SEAN MOORE: I'm -- I'm sorry, yes, yes. 21 MADAM COMMISSIONER: That deep voice has been 22 the bane of your existence, I declare, Mr. Moore. 23 MR. SEAN MOORE: Yes, I don't want to frighten 24 people. 25 MADAM COMMISSIONER: Or maybe not the bane,
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1 it's probably got you a lot of money at the same time. 2 MR. DAVID BUTT: We want to make sure the 3 transcript of these Proceedings -- 4 MR. SEAN MOORE: I understand. 5 MR. DAVID BUTT: -- goes on our website by 6 eight o'clock tonight, so we want to -- 7 MR. SEAN MOORE: I understand. 8 MR. DAVID BUTT: -- keep everything well 9 recorded. 10 Now, you're currently working on a book with 11 William Stanbury on lobbying and public policy advocacy, 12 working title is, "How the System Works and How to Work the 13 System"? 14 MR. SEAN MOORE: Yes, a provocative title. 15 MR. DAVID BUTT: Yes, Okay. Madam 16 Commissioner, those are the panellists that will be 17 discussing issues around lobbying generally today. 18 And if -- if I could start and perhaps give 19 both of you an opportunity to perhaps lay some of the general 20 conceptual ground work that you both feel is important, in 21 terms of discussing particular issues, around lobbying. 22 And -- and if -- if I could ask this question; 23 could you -- and -- and I'll ask Mr. Conacher first, and then 24 Mr. Moore, to address the same issue, can you describe what 25 influences at a level of principle your initial approach to
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1 the issue of the propriety and limits of outside actors 2 playing a role in Government decision making? 3 MR. DUFF CONACHER: Well, when you have a 4 governance system and you have various interests trying to 5 influence that system. You have a situation where those 6 various interests often view what they are putting forward as 7 proposals, as proposals that are completely within the public 8 interest. 9 And we essentially have set up a system at all 10 levels of governance in Canada, where we say, thank you for 11 your input, but, we have -- are going to have other 12 representatives elected and also hired in the public service, 13 to decide whether -- what you as an interest are putting 14 forward as a proposal is in the public interest. 15 For good governance to prevail in that system, 16 Democracy Watch's position is that, you want a system that is 17 transparent because sunshine is a good disinfectant against 18 corruption. 19 You want a system that requires honesty, so 20 that lying, trying to cover something up, alo -- just that 21 alone, is a violation of the -- the good governance process. 22 You want a system that requires ethical 23 behaviour amongst all of the decision makers, because 24 conflicts of interest undermine upholding the public 25 interest.
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1 And you want a system that is required to be 2 responsible, because responsible government is essential 3 overall, in terms of ensuring the public interest is upheld. 4 Within the framework of those four (4) 5 factors, you want the system to also represent the popular 6 will, but, I won't focus too much on -- on that as we go 7 through -- through today, because that brings into question 8 the whole issue of elections and I think we're more concerned 9 about decision making and other transactions once you have a 10 government. 11 And you want that, within that framework, as 12 well, to ensure that there's accountability if any of those 13 four (4) principles are not upheld, principles of 14 transparency, honesty, ethical behaviour and responsibility 15 and -- and representativeness. 16 How do you get there? Well, Democracy 17 Watch's approach is that because you are in that situation as 18 in many others in society regulating human behaviour, you 19 need a system that will effectively regulate that behaviour 20 and create more incentives to comply with the good governance 21 principles, than there are incentive to violate them. 22 The incentive system that we believe needs to 23 always be in place has five (5) key factors and -- and you -- 24 if any which of these five (5) key factors is missing, we 25 believe the system will be fatally flawed and will be
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1 designed to produce violations of good governance principles, 2 because it will encourage the decision makers to violate 3 those principles. 4 What are the five (5) factors? Just briefly, 5 strong rules on ethics, on spending, on covering all the 6 consultations, the decision making processes. If you have 7 loopholes, the loopholes will be exploited. 8 The second factor, you want disclosure to 9 uphold the principle of transparency and the -- also the 10 right of citizens to know how decisions are being made. 11 Then because the disclosure and the rules will 12 not be self enforcing you need a fully independent, fully 13 empowered watchdog agency or agencies, to watch over the 14 ethics rules, the spending rules, the consultation rules, the 15 decision making rules, generally and ensure that they are 16 adhered to. 17 If that agency can only catch people though 18 and expose them that -- that, we believe history has shown, 19 is not enough to dissuade people from breaking the rules so 20 that agency also needs the -- in -- or agencies, is usually 21 the case in most government systems, they've set up multiple 22 agencies, those agencies need to also be able to levy 23 penalties against any of the actors that -- decision makers 24 that violate those rules and the penalties have to be high 25 enough to actually encourage compliance.
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1 Finally, because even the agency can be 2 captured by interests, influenced unduly by interests, 3 including the decision makes that they are trying to ensure 4 comply with the law, you need citizens empowered to watch 5 over the agency and also watch over the decision makers. 6 And citizen empowerment, a few key factors 7 involves, one, a citizen right to sue. So if an agency 8 refuses to act the citizens should always have the right to 9 go around the agency and -- and take the issue into the 10 courts. 11 You also need full whistle blower protection. 12 So that any citizen that witnesses wrongdoing is fully 13 protected if they blow the whistle from retaliation and 14 another element of an effective system is actually to reward 15 whistle-blowers and you also need citizen watchdog groups and 16 I can talk more later about an innovative method that we are 17 pushing to form such watchdog groups to watch over these 18 things. 19 Why are we not there now? Simply because 20 politicians and public servants are the ones who have had the 21 power to set up the rules to govern their -- their decision 22 making. And, like most humans, they have not wanted to 23 increase their accountability because if you increase 24 accountability then you're going to get caught, more likely, 25 if there's any wrongdoing.
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1 So, in almost every jurisdiction across the 2 world, we haves fatal flaws to the systems of good governance 3 simply because the people who are setting those rules and 4 setting up those systems are, in themselves, in a conflict of 5 interest because it's in their self interest, in some ways, 6 not to have effective accountability systems. 7 And so, because if -- if the systems are 8 effective they are more likely to get caught if they violate 9 the rules. And so that's the -- the big barrier that groups 10 like Democracy Watch and groups similar to us across the 11 world have been trying to get over. 12 The fact that those who are being regulated by 13 these systems are the ones also designing the regulations and 14 so we sit here now, in Canada, for example, a hundred and 15 thirty-seven (137) years after Confederation and the Federal 16 Government does not have an ethics enforcement system that's, 17 in any way, effective. 18 And that's just one example of many of various 19 governments that have fatal flaws in their good governance 20 systems. 21 MR. DAVID BUTT: Okay. And, Mr. Moore, could 22 -- could you help us with some of the big ideas at work in 23 app -- approaching the whole issue of outside participation 24 in -- in the government decision making from your 25 perspective?
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1 MR. SEAN MOORE: Sure. I'd be happy to do 2 that; though, I do want to come back at some point to the 3 notion of corruption and secrecy and a lot of these other 4 things which Duff warns us about which, I think, it is -- it 5 is important for anyone who's interested in a democratic 6 system to be concerned about, but to be careful not to 7 suggest that that behaviour and those ethics are pervasive in 8 governments today. 9 I don't believe they are, though I do agree 10 it's important to have mechanisms to -- to root it out and to 11 respond to it appropriately. Mr. Butt, if you don't mind, 12 I'd also like to just try and deal a little bit with some of 13 the definitional stuff that you suggest in some of the 14 outline questions that you provide, for instance, the 15 definition of lobbying. 16 The -- there is now in Canada a legal 17 definition of lobbying and it's found in the Federal and 18 Provincial statutes on lobbyist registration. It defines 19 lobbying -- actually there's two (2) definitions now because 20 the Feds have just changed theirs but the -- the Fed -- the 21 one up to now, in fact the new law is not in effect yet, it's 22 "...any communication with a public 23 officeholder for the -- in an attempt to 24 influence a decision of government." 25 And that's -- that's a pretty good, broad
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1 definition. Interesting to note that the Feds are now 2 dropping -- dropping the line in an attempt to influence, 3 because they feel that somehow leaving that language in the 4 law compromises their ability to enforce it, because it's 5 gets so easily confused with the provisions of the Criminal 6 Code, dealing with influence pedalling, that a whole -- 7 that's another whole rather interesting line of -- line of 8 thinking. 9 Lobbying, however, I think -- I think we would 10 be remiss in not acknowledging what is probably the popular 11 perception of lobbying today, as used generally in the press, 12 which by the way, frequently interposes that term with the 13 term influence pedalling, which is interesting, but we'll get 14 back to that. 15 Lobbying is usually seen in a -- or discussed 16 in a pejorative context. There are other words you could 17 use, that describe the phenomenon I think broadly, and which 18 I suggest we need to look at broadly, and that's public 19 policy advocacy. 20 Any attempt to make an argument to Government 21 about a decision of Government, and you're not necessarily -- 22 as the definition by the way and the Lobbyist Registration 23 Act requires that you be paid to do it, by -- by law, in 24 Canada, the definition, you're not lobbying unless you're 25 being paid to influence a decision of the Government. It
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1 doesn't cover it if it's voluntary, except in Quebec, 2 interestingly enough. 3 And often times po -- public policy advocacy 4 doesn't even mean dealing directly with decision makers. 5 There's all sorts of grass roots lobbying, and what you're -- 6 what you're trying to do is to frame an issue, advance a 7 cause through other means, by indirectly putting pressure on 8 -- on -- on decision makers. 9 So, it's a very, very broad ambit, this -- 10 this whole matter of -- of public policy advocacy, lobbying. 11 What a lot of people who are in the lobbying business used to 12 be called, have given up trying to draw a distinction of 13 Government relations consultants, which frankly, for the -- 14 the sort of thing I do is probably more appropriate, because 15 in my instance, and that of the vast majority of consulting 16 lobbyists, they are not communicating with public office 17 holders. 18 They are not talking to people in Government, 19 making the argument. They're suggesting to their clients how 20 they should do it, who they should see, how they should -- 21 what analysis they should provide, what their proposition 22 might look like. 23 The one (1) thing I -- I also want to say when 24 we're still talking about the definition of lobbying, is to 25 take issue a little bit, with what is otherwise I think, a
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1 first rate series of papers on lobbying and the Lobbyist 2 Registration that's been prepared by your research 3 consultants. 4 I -- I teach this stuff a lot, I'm always 5 looking for material on it, and I find some of the -- some of 6 the most cogent description and analysis of the phenomenon 7 I've seen for a long time. 8 Having said that, I -- I have a tough time 9 accepting the -- the definition, which I think describes 10 lobbying as a way from public scrutiny. In other words, that 11 de -- the definition that they're using is advocacy, 12 representations to Government, away from public scrutiny. 13 I think that at one (1) and the same time is 14 too narrow of a definition, while at the same time casting 15 some -- casting some indirect dispersions about certain types 16 of -- of advocacy, but we -- we can -- we can get back to 17 that. 18 So, I think the definition -- there -- there's 19 so much value laden language around the discussion of 20 lobbying, heavily influenced by popular culture descriptions 21 of it, whether it's looking at the West Wing on television, 22 or -- and certainly looking at the -- the way lobbying is 23 used, the terms that are used, even by lobbyists themselves, 24 when they're on the losing side. 25 In fact, some of the most vicious
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1 characterizations of lobbying activity are usually by 2 whoever's losing an argument on the substance of -- of an 3 issue. 4 So, there are many -- I think there are some 5 misconceptions about lobbying, but there's also some, I think 6 valid ones. Does the phenomenon of organized public policy 7 advocacy include individuals and behaviour that any person 8 who respects their democratic process would find offensive? 9 Yes. 10 Are there -- are there some practises that 11 probably still need to be curtailed? I would say, yes, but I 12 think it's important to note that if you look at the -- at 13 the phenomenon of organized public policy advocacy, that 14 really is or should be the grist of what citizen behaviour in 15 a democratic, pluralist open society is all about. 16 It's accepting that governments are 17 arbitrators, rule makers, allocators, value definers and do 18 we just leave it to politicians and public servants to define 19 those things? 20 No, of course we -- and -- and if we look at 21 elections as being a -- an inadequate means of channelling 22 information to decision makers, then the day to day dynamic 23 of Government seeking advice, Government receiving advice, 24 Government digesting representations made from various 25 quarters of civil society, as we like to call it now, I mean
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1 that's what the rest of the world wants in terms of a system. 2 That's what tho -- those countries who are 3 trying to describe democratic systems, they're trying to -- 4 to evolve democratic systems; in that sense we are living 5 their dream. 6 Now, I think it's very important as part of an 7 informed civic culture, for it to know, and understand far 8 better than it does now, how decisions are made. How 9 politics works, what the process is, what the dynamic is. 10 And government can go some way towards doing 11 that and one (1) of the recommendations I'm going to make in 12 the course of my chatting away this morning, is that there's 13 a -- there's a very important role for governments, I 14 believe, in this, in doing a better job of explaining how 15 their decisions are made. 16 But, I think if -- if we're going to look at 17 this, we can talk a little bit about the -- we can talk -- 18 I'm sure we'll talk a lot about the unseemly, the 19 inappropriate, the -- the perhaps scandalous, but, let's not 20 also not lose our sense of proportion and context. 21 We have a society, in which, most of our 22 governments provide most of their services in a fair, honest 23 and efficient way. To suggest anything else, is to suggest 24 we have mass incompetence and mass evidence of -- of 25 corruption and -- and dishonour to the democratic system,
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1 that frankly, I just don't see there. 2 It's not to say that it doesn't happen; not to 3 say that we shouldn't have cops looking for them, we 4 shouldn't have means of checking it, but, anything we do to 5 define more rules around that system, I believe, should 6 civilize it, not constipate it and I think there's a risk in 7 doing that. 8 MR. DAVID BUTT: Thanks, now, just to join the 9 debate a -- a little bit. We've heard, Mr. Conacher, from 10 Mr. Moore about this kind of advocacy as living the dream of 11 developing democracies. 12 Do you share that -- that vision of the 13 importance of that kind of participation in the government 14 decision making process, outside of once every four (4) 15 years, exercising a vote? 16 MR. DUFF CONACHER: Oh, very much so. A wise 17 person once said that the price of democracy is eternal 18 vigilance. And we are in a situation, I think in Canada that 19 is actually behind some developing countries, in terms of the 20 -- the level of citizens, in terms of percentage of the 21 population that are being eternally vigilant. 22 In part, I think it's a result of having a -- 23 an economy that's fairly stable. Having more than two (2) 24 political parties, and so as a result, people have delegates 25 that are, sort of, watching out for their interests and --
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1 and as a result, I think a large portion of the Canadian 2 population has, in a way, gone to sleep, as opposed to 3 remaining eternally vigilant. 4 And by that I mean being active, yes, they're 5 aware generally, and yes, they're concerned generally, but, I 6 think actually in -- in many developing countries where -- 7 where the problems that people are facing are more severe on 8 a day to day basis, that they are -- that those countries 9 actually have a greater level of active citizen participation 10 in being vigilant and watching government, despite the fact 11 that they often lack the rights to do anything about it, that 12 we -- that we have here in Canada, but it's definitely a key 13 part of a democracy of a country that claims to call itself a 14 democracy. 15 MR. DAVID BUTT: Could I ask you comment on 16 the distinction between active citizen vigilance and active 17 citizen participation in decision making processes? 18 MR. DUFF CONACHER: Sure. 19 MR. DAVID BUTT: Certainly I hear you very 20 clearly about the -- the importance of the citizen vigilance, 21 I just wanted to elicit from you your thoughts on Mr. Moore's 22 comments that the -- the somewhat distinct from vigilance the 23 actual participation in the -- in the decision making process 24 that one might put under the rubric, broadly speaking, of -- 25 of lobbying; is that -- is that a good thing?
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1 Is that an important part of the decision 2 making processes of government? 3 MR. DUFF CONACHER: Yes, I think so, very 4 much. And I would distinguish between a citizen that's 5 watching versus being an active citizen with just a simple 6 metaphor. 7 The citizen who's watching complains over 8 lunch to colleagues or at cocktail parties about that 9 government's doing this thing. The citizen who's active 10 complains to the decision maker, not to their colleagues or 11 -- or a social circle and so they're writing letters or 12 calling or meeting with their representative as opposed to 13 just complaining. 14 MR. DAVID BUTT: And, apart altogether from 15 complaints, what about assertively putting forward views on 16 the substance of government decision making? In other words, 17 you should take policy X, it's a good -- 18 MR. DUFF CONACHER: Sure. 19 MR. DAVID BUTT: It's a good direction for 20 reasons A, B and C? 21 MR. DUFF CONACHER: Yes. And, I mean, 22 complaints take various forms from simply saying, stop doing 23 this to saying, I don't like what you're doing and I think 24 this would be better. 25 Citizens are active in many different ways. I
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1 think what we're experiencing in Canada and other, what would 2 be viewed as -- as more mature democracies, is that there is 3 a view, I think that is fairly prevalent amongst the 4 population, that democracy means I get what I want. 5 And that if I don't get what I want, it's not 6 -- wasn't a democratic decision, echoing what Mr. Moore has 7 raised as a -- as an example where you often hear the most 8 strident complaints about a lobbying effort from the other 9 side -- of the lobbyist from the other side who -- who lost 10 or viewed that they lost the decision. 11 And so that expectation is not realistic. 12 Democracy is not that each individual gets what they want 13 because that's simply impossible. Lines have to be drawn, 14 decisions have to be made, but there is signs, through 15 polling and voter turnout, that many -- a large section of 16 the population believes that they never get what they want or 17 even close to what they want. 18 And because they see all sorts of barriers to 19 their voice being heard and Democracy Watch's position is 20 that -- that there are several flaws in the system that do 21 mean that the citizen voice, the popular will, is often not 22 -- well, it may be heard but it is not acted on. 23 And that's the -- the -- the -- the 24 frustration and the -- and the cynicism in the voter turnoff 25 that I think has been caused by those flaws in our current
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1 system at all levels of government. 2 MR. DAVID BUTT: Mr. Moore, I see you nodding 3 to those comments and you adverted earlier that one of the 4 things you wanted to talk about was the notion of government 5 doing a better job explaining the decision making process or 6 the need to have more understanding at the citizen level of 7 the decision making process; could you talk a little bit 8 about that now because it appears like it may address some of 9 these concerns that you -- you both share? 10 MR. SEAN MOORE: I agree with Duff's very 11 well expressed characterization of the political ferment and 12 the dissatisfaction and its connection to people not seeing, 13 in government decisions, their views being taken into 14 account. 15 Now, this may well be beyond the ambit of this 16 particular Commission but I do think it's something that 17 requires some address and that is the notion that part of 18 transparency should be, I believe, a more complete 19 description by government of why and how it makes decisions. 20 I agree entirely with -- with Duff on this. 21 In fact so much so, that I -- I guess it moves me around to 22 taking a different approach to some things that we will -- we 23 will probably have a difference on, and that is this notion 24 of what kind of information should be out there, which people 25 can get an understanding of how Governments have made
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1 decisions. 2 The -- there has -- there has been a general 3 tendency, I believe, and I'm stealing this idea from someone, 4 and I've never been able to find out who authored it. But 5 someone once said that the way Governments, for the most 6 part, have operated, in -- in western democracies and in 7 Canada over the last probably hundred (100) years, is to take 8 a dad approach, to making decisions. Decide, announce, 9 defend. 10 Now, we're starting to see some movement I 11 think on that, now Government's realizing that the very 12 process of decision making is an issue in and of itself, in 13 fact, I think it's the central issue, if we -- if we get 14 around to talking about the public interest, I think the 15 process dimension of public interest is -- is probably even 16 more important, because you can get your fingers and your 17 mind around that, whereas a broad definition of the public 18 interest may be more difficult to -- to come up with. 19 But there -- there is some hopeful sign, that 20 Governments at least -- Government's everywhere, Municipal, 21 Provincial, Federal. If you look just here in Toronto, 22 Ontario, Canada, right now. 23 You know the Mayor of Toronto who was talking 24 about broad consultations on stuff, and the Provincial 25 Government announcing a revival of the consultations
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1 phenomenon, in a fairly -- in a fairly big way, consultations 2 on budget on the throne speech, and you have the Prime 3 Minister tripping over himself, opening up new means of -- of 4 consulting. 5 This is all very good, I believe, but it will 6 probably just -- in the first instance, just exacerbate what 7 has already been a fair bit of consultations fatigue in 8 society generally, and especially among organizations, whose 9 role it is to -- to be involved in -- in consultations on 10 behalf of whatever group that they're doing. 11 So, that's all very good, but one (1) thing 12 that I have yet to see Governments master particularly well 13 though, is really explaining in a useful way, after all that 14 consultation is done, after the decision is made, explaining 15 not only the decision on what a great idea their decision is, 16 but to go beyond that and talk about the options that they've 17 looked at and did not accept, and why not. 18 Now, obviously there's so much effort that can 19 go into explaining these things it's fine -- there's finite 20 human resources to do it and there's certainly often times 21 limited political appeal by decision makers, bureaucratic and 22 political to go into all the details behind how they picked a 23 particular option. 24 Sometimes some of the factors aren't very 25 pretty, sometimes they're -- I mean, I always explain to my
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1 clients, when you're dealing with Government, it's important 2 to understand what their objectives are on a particular 3 issue, and you can find that by reading what their stated 4 objectives are, or but what's just as important often times, 5 is trying to get a handle on what the unstated objectives 6 are, because they're there on every issue. 7 And there'll be limits to how much Government 8 can explain about why it does certain things, but I think 9 there's huge room for improvement there and then that starts 10 to build, I believe, the basis of a more informed society, 11 for those who want to take the trouble to find that sort of 12 stuff out. 13 Right now, it's very difficult to understand 14 the criteria that are used in the -- in the process of 15 decision making that goes into almost anything. Some of it 16 has to do with the black box nature of Parliamentary 17 Government, where -- and I know this may not be very helpful 18 if you're dealing with the Municipal level, but at the 19 Provincial and Federal, although I know we've both had 20 experience in that field. 21 The whole notion of confidential advice to 22 Ministers, means that nobody except Ministers, are seeing the 23 range of options that the public service is putting up to 24 them; the analysis, the pros and cons. 25 And as a result, Government has to pick one
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1 (1) of them, and the dynamic of Cabinet decision making, 2 there's a lot of compromises that are made, a lot of pretty 3 violent arguments about principle, and how this will work, 4 and regional interests. At the end of the day the only thing 5 they can agree is that they're all going to agree on it, and 6 they're all going to say it's a swell idea. 7 They're not going to be talking about the four 8 (4) other options that they had, they're not going to be 9 talking about the down sides of a decision. For every single 10 decision government makes there's winners, there's losers. 11 And I don't mean just in rich versus poor. 12 The whole nature of politics, the dynamic of politics is 13 allocated and there is value judgments made and yes, there 14 may be limits on how much of that can be described. 15 But, for anyone who wants to understand how 16 their government works, an important thing is seeing a 17 description from government on how it works, so they at least 18 know what the process is, they at least know what they're 19 dealing with and that was sadly lacking in most issues, in 20 most governments, most times. 21 MR. DAVID BUTT: And just to carry that idea a 22 little bit into the lobbying context, am I right to assume 23 that if there is greater effort put into explaining those 24 decision making -- those decision and, in particular, 25 addressing the options that were not chosen, and how those
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1 options were rejected, there would inevitably be, discussion 2 of the role that lobbyists had played in pushing for one (1) 3 decision or another, and why or why not those positions were 4 effective or ineffective? 5 MR. SEAN MOORE: Yes in terms of -- it would 6 be a monumental task tagging what idea came from where. I 7 mean one (1) of the reluctances I have about providing 8 voluminously more information about representations, maybe 9 I'm getting ahead of myself there -- if you want to deal with 10 that when you're talking about registrations, I'm happy to do 11 it. 12 MR. DAVID BUTT: That's fine -- 13 MR. SEAN MOORE: I'm concerned about the 14 serpent of information. The more stuff you have out there, 15 to a certain extent, the more there is a bias towards the 16 utility of that information by those who have the money to go 17 through it all. 18 You can have all that information out there, 19 but, as long as you don't -- if it's still going to take 20 someone to sift through it, and God knows I've done it, I've 21 put in the access to information requests and got boxes of 22 materials, and have been paid by clients to spend weekends 23 every moment, in which you're not writing something else, 24 going through and trying to find out something about a 25 government, a government decision.
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1 It's very expensive to do it. That's why I 2 take it from the other end, when we're talking about 3 transparency of how governments make decisions and why they 4 make the decisions, we should be putting more of that 5 responsibility on governments to explain that, because the 6 sheer volume of the input, just on the written side, forget 7 the oral discussion. 8 I mean is everyone going to need to have, if 9 you want to see how everyone, what arguments every one is 10 making on every issue, then we better be taping phone calls, 11 getting transcripts of them, putting them up there, and where 12 does it end? 13 And anyways -- sorry -- 14 MR. DAVID BUTT: Would you like to talk to 15 that issue? What about this notion of too much information 16 is a bad thing? 17 MR. DUFF CONACHER: Sure. Well, just to back 18 up slight on the participation issue. I think at the City 19 level, it's actually not as much of a problem as at the 20 Provincial and Federal level and part as, Mr. Moore's already 21 raised, it's not a parliamentary system. 22 So you're not talking about an executive that 23 is from one (1) party that is and has supporters in a chamber 24 that will tow the party line or have to follow party 25 discipline.
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1 And as a result of that, at the City level 2 having Councillors who aren't following a party line, you 3 generally have more openness because there isn't a government 4 agenda, at a City level, the way there is Provincially and 5 Federally. 6 And the second thing that City's have, 7 although as they grow, this can become an issue, but, the 8 second thing that they have that helps in participation, is 9 that it is local. 10 So, why did I move to Ottawa to set up 11 Democracy Watch? Well, because if you're going to influence 12 the Federal government you better be in Ottawa and that's 13 where most of the lobbyists are, or they certainly travel 14 there. 15 But, at a City level everybody is there 16 already. And so that facilitates participation. So, I think 17 Provincial and Federal governments have a lot to learn from 18 City planning processes, in terms of citizen participation. 19 The City of Rossland in BC, has gone so far as 20 to allow citizens to initiate referenda. So directly being 21 involved in initiating policy, not just participating in 22 hearings, but, most cities, with their planning processes, 23 are way ahead of what anything any Provincial or Federal 24 government does in terms of getting -- having an open system 25 with a dedicated avenue for citizens to have their voice
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1 heard versus citizen groups, versus academics and experts, 2 versus lobbyists or industry. 3 And -- and so I don't think that's a key 4 problem at most city levels. It's more a problem at 5 Provincial and Federal levels. When you're talking about 6 other types of decisions such as contracts, well, then I 7 think at all levels of government you're -- you're talking 8 about something that is more obscure to the citizenry, how 9 contracts are handed out because it's not generally as 10 covered as much by the media or as a direct broad interest to 11 the broad population. 12 At least they don't perceive it that way. 13 They don't perceive a particular contract being handed out 14 within the healthcare system, most people don't see that as 15 -- as much interest as what is going to be the design of the 16 healthcare system, just to give an example of the 17 distinction. 18 And so, in that area, I think all levels of 19 government are not being transparent enough, but just then, 20 all levels of government should try to do as much to -- to 21 open up their decision making and making it transparent and 22 easily understandable to more citizens because that can 23 decrease the influence that lobbyists can have who know the 24 system, how the system works, really well and can use what 25 they know in ways to gain some access that the citizens can't
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1 gain because they don't understand the system as well. 2 The more the governments do to -- to educate 3 the citizenry on how the system works, the less the lobbyists 4 will have that as an advantage. 5 MR. DAVID BUTT: I'd like to pick up, if I 6 could, on a distinction that you mentioned there between, you 7 know, broader public policy approach to government and -- and 8 an approach for contract. 9 So, if we draw a rough distinction between 10 public interest advocacy and commercial advocacy; is that 11 distinction helpful in defining the limits on -- on what 12 lobbyists should do? 13 Should there be, just again to help you with a 14 little bit of background, Mr. Peters, Erik Peters, a former 15 Provincial Auditor, was here yesterday and expressed the view 16 that if there was a proposed policy that was broadly defined 17 in the public interest, there's certainly a role for 18 lobbyists or -- or organized advocacy to plan. 19 However, if it's a commercial procurement 20 situation there's absolutely none. Mr. Moore, can you 21 comment on that and then I'll ask you, Mr. Conacher, to 22 comment on that as well? 23 MR. SEAN MOORE: Well, I think there -- 24 there's so many different types of decisions that government 25 make, policy decisions as you've described, broad policy,
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1 there's procurement decisions, there's general allocative 2 decisions that they make, there's rule setting, regulatory 3 decisions. 4 But if you want to just isolate the 5 procurement thing for a moment because I think there are -- 6 the role of, say, a lobbyist, the role of -- of people who 7 are -- who have an intimate knowledge of both process and 8 substance, a lot of them consider themselves lobbyists, 9 right? But what's their role in this and is it different in 10 procurement? 11 Now, I'm inclined to -- to think that the kind 12 of rules that you have, for instance within the Federal 13 government and I think most Provinces as well, that draw a 14 line on quote "lobbyists" in the true sense, I believe these 15 are appropriate. 16 The first one is the prohibition of 17 contingency fees. Now, there's a great quote from the US 18 Supreme Court decision prior to the Civil War in which a US 19 Supreme Court Judge ruled that any contract between a 20 lobbyist and a client was null and void because it was so 21 inimical to public interest to have a contingency fee 22 provision in that contract. 23 Now, I'm still trying to find that. It's a 24 great quote. Kind of a Lincolnesque condemnation of how it 25 provides too much motivation. It hurries the -- fevers the
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1 intent and clouds the judgment; it's a great piece. 2 And I think the -- the spirit of that, I think 3 is an appropriate one (1), when one considers the 4 appropriateness of allowing people to have a particular type 5 of financial incentive, depending on a particular outcome, 6 especially as it relates to procurement. 7 Now, there are other types of contingency fees 8 for other types of work, which we can -- we can talk about 9 later, but just again, sticking with procurements, I think 10 contingency fees are -- is an appropriate thing to prohibit 11 when it comes to, I would say both procurement and broadening 12 it, because some laws and some Provincial jurisdictions. 13 For instance Ontario, broadened some of the 14 lobbyist registration things beyond just procurement, to 15 include contracting out, privatization and alternative 16 service delivery. In other words, bids are involved on 17 something. 18 The second line in the sand, or second rule 19 that I -- I think is appropriate, is to say that 20 communications, all communications with the contracting 21 authority, whoever that might be, and I think you have to 22 define it as -- you can't say you can't talk with anybody in 23 Government, but the contracting authority is severely 24 restricted, constrained, during a procurement process that 25 starts with the issuance of an RFP, so there's no fooling
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1 around, so there's not any -- you know, when an RFP goes out, 2 God knows I've been involved in lots of these. 3 When an RFP goes out, usually there is a rule 4 that says, okay, the RFP's coming out today, it's due in six 5 (6) weeks, but up to week four (4) of this period, anyone who 6 wants to submit a question about this RFP, the terms of 7 reference, the mandatory requirements, whatever, can do so, 8 but must do so in writing, and the answer will be sent to 9 everyone who's expressed an interest in this particular 10 contract; that's a very standard thing. 11 And at least in Federal and -- Federal 12 contracts, and I think for many Provincial ones, don't know 13 if it applies Municipally. We -- we put it in our contracts 14 when we're setting these things up for our clients. It's a 15 way of guaranteeing relatively level access, and insights on 16 stuff, it's a good efficient way for Government to get out 17 things that they maybe haven't thought about. 18 You know, asking questions of the contracting 19 authority, during a phase of the contracting process, is very 20 important because they may have, you know, forgotten 21 something, or they may have failed to take something properly 22 into account and as long as it's changed for everyone within 23 the same time frame, that's good. 24 So, those two (2) things I think are 25 appropriate. Now, prior to the RFP phase is i.e., organized
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1 attempts to influence a decision of Government appropriate, 2 when they deal with procurement or AST or privatization, I 3 think they do, because again, if you assume that Government 4 always doesn't know best, that perhaps there are other 5 thoughts and considerations, criteria, rules, that they 6 haven't thought about, that should be part of the process, or 7 that the people feel should be included in the Government's 8 RFP, they should have an opportunity to do that. 9 And I -- I don't know what kind of rules you 10 want to constrain -- or put in the constraints that -- beyond 11 that, which you'd have for any other area of public policy. 12 MR. DAVID BUTT: Can I just -- and, Mr. 13 Conacher, I very much want to hear your thoughts on this 14 distinction between commercial and -- and broader types of -- 15 of lobbying. Just -- just to clarify a little bit, when 16 you're talking about the pre RFP period, Mr. Moore, and 17 saying it's appropriate to approach Government, do you draw 18 any distinction between civil servants and elected officials 19 or staff and -- and Councillors, in a Municipal context? 20 MR. SEAN MOORE: I don't, but I guess if you 21 pressed me on it I'd say, if you're dealing with that sort of 22 stuff, why are you dealing with the politicians; I'm not sure 23 why a politician would get involved in that. 24 But you know, I think that might vary -- vary 25 different -- or considerably, vary considerably, between
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1 Municipal, Provincial and Federal. If you're talking about 2 a, you know, the new -- new contract for City Hall, build a 3 new City Hall or an expressway or something, then you know, 4 at those phases, maybe it's appropriate for Municipal 5 politicians to be the -- one (1) of the recipients of that 6 message, I don't know. 7 At the Federal level though, in most cases 8 that you probably should be restricted to -- not restricted, 9 yeah, I guess I'd be inclined to say that I can see you can 10 make a case where it should only be focussed on the public 11 service, people that are working out the details. 12 I mean, how much detail -- this is a big 13 decision at every level of government, how much are you 14 delegating down? How much nitty gritty detail do elected 15 officials want to get into? How much should they get into? 16 I mean our whole system of government works on 17 massive systems of delegation of authority and in fact, we're 18 about to see an interesting example of what happens when 19 politicians take too much on. 20 The added roles and responsibilities that are 21 about to be conferred on Federal Members of Parliament, is 22 quite awesome. I don't think they have a clue what's going 23 to hit them when they see the cumulative effect of all these 24 things that are being added on to them and then you will add 25 something, Mr. Conacher's rightly pointed out before,
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1 probably a quantum increase in the amount of advocacy 2 activity, that's going to be focussed on them now. These are 3 going to be much busier people. 4 MR. DAVID BUTT: Mr. Conacher, can you offer 5 us your thoughts on that commercial versus public interest 6 proposed distinction. 7 MR. DUFF CONACHER: Well, simply I agree with 8 what Mr. Moore has put forward as to two (2) additional 9 restrictions that you need when you move into that context. 10 The restriction on, in terms of full transparency on any 11 communications and then the ban on having a -- someone be 12 hired on the basis of a contingency fee, where again because 13 that encourages them to do whatever they can, to win the 14 contract and I think that does again provide an incentive to 15 violate the rules that might be there in place, an incentive 16 that should not be there. 17 So, you want the ban on contingency fees, but, 18 those are just two (2) additional restrictions on what I 19 think lobbyists should be allowed to do. 20 And when you're looking at the situation of 21 politicians versus public servants and what kind of rules you 22 would have in place for them, they -- within a contracting 23 process, you have to look realistically again at how much the 24 public servants are protected from the influence or pressure 25 of the politicians.
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1 And if the public servants, certainly when 2 you're talking at a Provincial or Federal level, they're 3 required to be loyal to their Minister. If they don't have a 4 protection to protest against a Minister saying do this, you 5 have to be loyal to me, do this. 6 If they can't blow the whistle when what 7 they're being asked to do is wrong, or more directly, if 8 they're not required to blow the whistle when what they're 9 asked to do is a violation of rules, because they may want to 10 do it because they're -- they're of the same political 11 affiliation as the Minister and they're quite happy to do 12 whatever the Minister says. 13 But, if they're not required to blow the 14 whistle on violations and not fully protected and rewarded 15 for doing so, then you can have the politicians actually 16 being the decision maker, in a contracting situation, when 17 they should not be. 18 And there are a lot of suspicions and rumours 19 that this has happened at the Federal level in the past few 20 years, with the handing out of some advertising contracts. 21 It's all being investigated currently and we don't know 22 exactly what was going on, as of yet. 23 But, so -- 24 MR. DAVID BUTT: What I hear you saying, if I 25 we just capsulate to this point, is that, inherently, it's
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1 problematic for politicians to be directly involved in 2 procurement decisions, is that taking it too far, or -- 3 MR. DUFF CONACHER: Well, it is if the public 4 servants are the ones deciding to be the decision makers. If 5 the situation is that the politicians are the decision makers 6 and that's how they've decided to make decisions about 7 contracts, then it isn't a problem. 8 MR. DAVID BUTT: But, I guess -- 9 MR. DUFF CONACHER: But, it's just hard to 10 look at these things in isolation because you can say, oh, 11 okay, well -- no contingency fees, all communications with 12 public servants has to be entirely open during a contracting 13 process, but, then you have a -- so then the lobbyist go to 14 the politician and the politician lobbies, in effect, the 15 public servant and puts pressure on them. 16 And if that public servant does not have 17 sufficient protection to be able to come out and say, I've 18 been pressured and this is illegal and without any fear, 19 can't be even an inkling of fear of retaliation. 20 And actually again, should be rewarded for 21 standing up in this way, that's what most commentators 22 believe is an effective whistle blower protection system, it 23 involves rewarding those who blow the whistle. 24 Then it doesn't matter what you're doing in 25 terms of communications with the public servants who are
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1 supposed to be making the decision because that'll all be 2 subverted and undermined by the pressure from the political 3 side. 4 MR. DAVID BUTT: So what -- 5 MR. DUFF CONACHER: So -- but if it's the 6 political side then you could say, well, the politicians 7 can't do any of these things but -- and it may be a specific 8 Minister who can't do any of these things at a Federal or 9 Provincial level but then if you didn't make it illegal for 10 the Premier or the Prime Minister to be influenced well then 11 they may be the one who's putting the pressure, improperly, 12 on the Minister and, again, if the Minister wasn't fully 13 protected in blowing the whistle on that and required to blow 14 the whistle then you could have the whole system subverted. 15 So you really have to always look 16 realistically at every single person in the system that can 17 influence the decision and the rules have to apply to all of 18 them. Otherwise you will have the -- a system that will have 19 a loophole that will be exploited. 20 MR. DAVID BUTT: Can you offer us your 21 thoughts on the pre-RFP process? We've heard Mr. Moore 22 drawing a distinction and is that distinction appropriate? 23 What kind of lobbying activities, in a commercial context, in 24 the pre-RFP process do you see as appropriate or perhaps 25 inappropriate?
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1 MR. DUFF CONACHER: Well, in a pre-RFP 2 process, I think you're then -- you're talking about a 3 policy-making decision, essentially. So all the same 4 restrictions I would put on the lobbyists activities and the 5 ethics -- ethical rules that public servants and -- and 6 politicians have to follow and the lobbyists have to follow 7 through that process because it is, in a way, a policy 8 decision to put something out to contract. 9 And the terms of the RFP are policy decisions 10 as well. So you're -- I mean, it's -- the difficulty that 11 you would have in drawing a distinction, I think, is where 12 does the pre-RFP process start? 13 And, if you're going -- if you're going to put 14 a different restriction on what you can do you have to do -- 15 you have to draw a start line and I don't think you'll be 16 able to draw a start line that can be generally applied 17 because it's really all -- would go right back to the 18 election of a party who may believe that certain things 19 should be contracted out. 20 So then, you're in the pre-RFP process, right 21 from when they're elected. 22 MR. DAVID BUTT: I guess one could say, 23 perhaps more so in a municipal context, that certain 24 procurement issues are really not policy decisions in this 25 sense, there has to be water mains, there have to be garbage
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1 trucks, there have to be roads and so procurement around 2 delivering and maintaining those kinds of goods and services 3 is not a policy question in the sense that it is a question, 4 it's a policy given, I guess, if you can call it that. 5 So, -- 6 MR. DUFF CONACHER: It is -- 7 MR. DAVID BUTT: -- would that affect your 8 analysis of -- so that procurement is inevitable and so that 9 kind of procurement is, I suppose, always in a pre-RFP stage? 10 MR. DUFF CONACHER: I understand what -- what 11 you're saying, I guess I just -- I wouldn't draw -- I 12 wouldn't add different distinctions between the restrictions 13 I would put on everyone involved different from policy. 14 In other words, if someone is lobbying to have 15 a bylaw drafted in a certain way with certain measures in it, 16 I don't see that as different from someone lobbying so that 17 the terms in an RFP are a certain way that would favour them 18 as a bidder. 19 MR. DAVID BUTT: So you would -- 20 MR. DUFF CONACHER: In the same way that a 21 public policy would be saying, if you do the law this way it 22 will favour us as an interest group because our interests 23 will be reflected in the terms that are in the law, the same 24 as a bidder was trying to get a term of reference that -- 25 that favours them as a bidder given the product or the
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1 service that they -- the design of the product or service 2 they have. 3 And, again, at the Federal level, we're seeing 4 an ongoing situation with purchases of helicopters and from 5 what I know this has been a big part of the whole process is, 6 what are the terms of the RFP? 7 And the companies have been trying to get 8 terms that favour their particular type of helicopter they 9 usually build. So it's -- I don't see a real distinction, 10 again, in terms of the restrictions I would put on all the 11 actors in terms of ethics rules and transparency, et cetera, 12 et cetera. 13 MR. DAVID BUTT: And underlining that, in 14 terms of your reference to the helicopter situation is that 15 there may be scope for intense organized advocacy around 16 decision making as to the structure of -- of a procurement 17 process, so there's a pre-RFP stage, could in fact be a -- a, 18 if not the critical stage of the decision making process. So 19 you'd want the -- the restrictions in place at that time? 20 MR. DUFF CONACHER: Yes, I mean it is the -- 21 it is the easiest and by appearance, cleanest way for a 22 decision maker to -- to fix a decision, because once they're 23 into the RFP process, at least Federally then, all the 24 communications are -- are supposed to be circulated to all 25 the bidders.
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1 So, if you can just set the terms to favour 2 one (1) of the bidders in advance, then you have in effect, 3 been able to do that more in secret, than you can by changing 4 things once the RFP's been issued. 5 MR. DAVID BUTT: And I'd like to follow up on 6 this discussion, by asking both of your views on, okay, so 7 what restrictions -- let's get practical here and let's -- 8 what restrictions need to be in place throughout the 9 processes. 10 Just before I do that though, I'd like to 11 return to something on -- on the -- on the contingency fee 12 issue. I -- I hear both of you agreeing that a contingency 13 fee procurement context is undesirable. 14 And let me ask this, Mr. Moore, you -- you 15 spoke earlier in your opening remarks, about how many 16 Government relations consultants, are not actually having 17 face to face meetings with Government people, but that's done 18 by others. 19 Can -- can you comment on this distinction 20 between the -- the consultants, and the -- the folks who 21 lobby directly on their own behalf, and again, in the 22 commercial context? 23 MR. SEAN MOORE: Sure. Can I just go back to 24 one (1) comment on contingency fee that you mentioned -- 25 MR. DAVID BUTT: Sure.
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1 MR. SEAN MOORE: You know, there are some 2 people who lose the opportunity to get any help at all in 3 their advocacy by banning contingency fees. The contingency 4 fees serve the same role in lobbying as they do in -- in 5 malpractice suits, right? They give people an opportunity to 6 have legal counsel that they couldn't otherwise afford. 7 So, when -- and the other thing I should say 8 is that the -- probably the most vigorous applause for the 9 notion of banning contingency fees, came from lobbyists 10 themselves, because now they could turn around and say, 11 sorry, you're going to have to pay us on the basis of actual 12 work we do, rather than only if we succeed. 13 For a lot of people they were greatly 14 relieved, and now see it effectively being banned in Ottawa, 15 it's a great relief to a number of them. 16 And by the way, in parenthesis, you know how 17 they did it, they -- they put a provision in procurement 18 regulations that require a bidder on Federal contracts to 19 certify that they are not paying anyone on the basis of a 20 contingency fee, no one external. They were still allowed to 21 pay in-house sales personnel a commission, if that was the 22 basis on which they are bidding. 23 So, that's an interesting segue into the 24 internal versus the external, because the vast majority of 25 companies in Canada, well, I shouldn't say that, I -- I can't
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1 verify that, so I'll say many companies have really all the 2 people they need to effectively present their procurement 3 case in-house. 4 If they do a lot of business with Government, 5 they've probably hired someone, who either knows the company 6 intimately and has taken the time to really understand the 7 procurement process, which is numbingly complex, I might add, 8 to go through the manual for the Department of Supply and 9 Services is -- it's probably the only sure cure for insomnia 10 left in the country, but it's very detailed. 11 So, frequently you'll have companies who do a 12 lot of business with Government, hire someone who used to be 13 in Government who knows that process and more times than not 14 it's someone at the official level, who understands the 15 paperwork involved, who understands the enormous amount of 16 work that goes into a procurement by Government. 17 In fact, one (1) of the strategies of any 18 effective procurement policy is to draft, to think through, 19 to suggest wording, suggest concepts to people in Government, 20 that they can then take in electronic form, edit as 21 appropriate and use. I mean, that's every lobbyist's dream, 22 that they are using the way you frame the issue, that 23 actually taken that electronic file, cut and paste as 24 appropriate. 25 That's one (1) of the -- in fact, it's one (1)
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1 of the few things that an organization can do to move what is 2 an otherwise over worked and under resourced public service 3 on anything. 4 But, again back to the in-house versus 5 external. One (1) of the reasons why you can argue that 6 there should be the same rules for both, is that some 7 companies do enough work that it's worthwhile to go out and 8 bring a couple of people in the house, who have that sort of 9 experience. 10 In fact, it's a great relief for some people 11 who are consultant lobbyists, because they don't have to go 12 out and market their services any more, they've got one (1) 13 person who pays the bills, rather than having to get 14 successive ones. 15 So, there are people within companies, many -- 16 in many instances, whose job it is to do nothing but manage 17 that company's representations on procurement, including 18 working at the front end, as -- as Mr. Conacher noted, it's-- 19 it's thinking through the RFP, looking closely at the 20 mandatory requirements, there's a -- re -- thinking about how 21 the terms of reference might be jigged, thinking about even, 22 sort of, how -- what the financial plan for procurement is; 23 I mean all of these things are -- are important factors. 24 And you can get them either in-house or you 25 can get them externally. There's a good number of people who
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1 have worked in procurement at both the political and 2 bureaucratic level who sell these services and I've used them 3 before and more times than not, it's well worth the money. 4 MR. DAVID BUTT: So, if we have a situation 5 where there is some considerable degree of prominence of 6 these in -- in-house lobbyists, if I can call them that, and 7 they have sales bonuses as part of their compensation 8 package, haven't we simply done a nifty end run, around the 9 prohibition of -- of contingency fees? 10 Mr. Conacher, do you want to comment on that, 11 first? 12 MR. DUFF CONACHER: Yes, I think -- I think 13 that is a bit of an end run around the -- around a ban on 14 contingency fees and what's -- the difference in the -- the 15 commercial setting and the procurement setting, as opposed to 16 trying to change a law, and again it's difficult to 17 generalize, but, generally a law change will not necessarily 18 result in greater profits for a particular company, it can 19 though, as well, which is why it's difficult to generalize. 20 So, when you're -- when you're pushing for a 21 change to a law, what is the -- I'm picking up a bit on this 22 -- this barrier, the banning contingency fees can cause, 23 because it -- it's a barrier to small business who may only 24 be able to bid on something, but, couldn't pay someone to 25 help them with the bid, except on a contingency fee basis.
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1 They wouldn't have the up front money or the 2 ongoing cash flow to pay, but, if they won the contract, then 3 they would have the cash flow. That's a bit different 4 situation, if you're trying to change a law, because usually 5 it's not directly going to result in an identifiable amount 6 of revenue for a company. 7 But, in either situation, if -- yes I agree 8 with -- with what you've put forward; that if in-house people 9 are essentially paid on a contingency basis, then that should 10 be defined as a violation of a -- of the con -- contingency 11 fee ban. 12 MR. DAVID BUTT: So, my next question is, how 13 does one (1) address that, in terms of -- in terms of policy, 14 recognizing as I -- as I think again a thread in your answer, 15 Mr. Conacher, that it's going to be the big companies that 16 can afford to have an in-house person -- 17 MR. DUFF CONACHER: Yeah. 18 MR. DAVID BUTT: -- doing that? 19 MR. DUFF CONACHER: Well, we haven't focussed 20 ourselves that much on the contingency fee issue, as -- as 21 in terms of Democracy Watch's position on these issues, 22 because no matter what they do as bidders, generally, or as 23 lobbyists in the public policy area, the decision making 24 power does not lie with them. 25 It lies with the public servants and the
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1 politicians and so, how can you check that -- what a in-house 2 person who is on commission may try to do? 3 Well, you check it by having a system with no 4 loopholes and full enforcement and all the ele -- elements I 5 mentioned before, that make it very likely that a public 6 servant or politician would get caught, if they took the 7 gifts, or any other means of -- of influence, had secret 8 communications with one of the bidders. 9 Very likely that they'll get caught and that 10 the penalty will -- is significant from their eyes. Again, 11 because it's, again, trying to set up a whole system of 12 incentives. 13 So they're the ones, public servants and 14 politicians, who are legally required to uphold the public 15 trust and define the public interest and what they have done 16 is, quite successfully, put the focus on lobbyists and 17 demonized them and said, well, we've got to regulate what 18 they do. 19 Well, what lobbyists are trying to do is 20 influence decisions not make them. And the decision makers 21 are the ones that -- where -- the -- the rules for decision 22 makers at the Federal level, for example, are weaker than the 23 rules for lobbyists; why? Because the politicians and public 24 servants draft -- are the one who have the power to make the 25 rules.
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1 So they've focussed on the lobbyists and said, 2 well, it's their fault that this decision happened. Well, 3 no, it takes two (2) to tango and -- and they are the 4 decision makers. So we've focussed more -- we're not too 5 worried about contingency fees if you have a very effective 6 system to ensure the decision making won't be aff -- won't be 7 affected by undemocratic, unethical means that a lobbyist may 8 try to use to influence their decision. 9 MR. DAVID BUTT: Okay. And -- and as I said, 10 I want -- I do want to deal with those restrictions. Mr. 11 Moore, thoughts on the -- on the in-house sales bonus 12 situation? 13 MR. SEAN MOORE: You'll really be messing 14 with compensation systems in a lot of companies by telling 15 them how they get -- when they're dealing with government, 16 how they can pay their employees; that's -- that's the 17 problem. 18 And I think that is what -- that's been 19 recognized in the Federal approach to this -- to this matter 20 where they have exempted in-house people. Also, I -- I 21 recommend you take a look at how Quebec is dealing with this. 22 Now, Quebec is -- in fact, I'm running ahead of myself a 23 little bit because you're talking about the notion of a 24 Toronto registry. 25 I think you may want to look at what Quebec
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1 has done. In their provincial Lobbyist Registration Act 2 they've extended the registration to the Municipal 3 jurisdiction. So, in other words, one big -- using one soft 4 -- software system, one mechanical system, and it could be 5 applied to jurisdictions throughout the -- throughout the 6 Province, they also in that -- in that Act -- and, by the 7 way, it's in the -- in the act and it's passed but it's not 8 promulgated, the part on Municipal, until 2005 or something 9 in Quebec. 10 But there's also a provision in the -- in the 11 Quebec lobbyist register -- or lobbyist, they don't call it 12 the registration act, they call it something else in Quebec, 13 lobbyist -- the distinct -- the distinct lobbyist 14 Registration Act, where they -- they deal with the issue of 15 contingency fees and add another little wrinkle which is that 16 no lobbyist can -- can, in any way, benefit from a financial 17 -- benefit from a financial contribution or benefit granted 18 by the Province. 19 In other words, they've extended it beyond 20 just procurement to be saying that a lobbyist can't get a 21 chunk of a Federal grant that a client has got, for example. 22 And they defined that, they -- they don't exempt in-house 23 people. 24 There's something else and I -- I don't know 25 if you've looked at it more closely than I have, Mr.
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1 Conacher, but I -- there's some other stuff in there you may 2 want to take a look at as -- as one way -- one way of 3 addressing it, though there's a ferocious lobby in Quebec 4 right now to modify that -- or that -- that legislation. 5 So, I don't know. I wouldn't recommend you go 6 there because unless you're dealing -- and then you'd have to 7 have a whole separate category for those companies who do 8 nothing but sell things to government. Government business 9 is a very important part of the good many companies' business 10 but it's usually not the whole thing. 11 And if you're going to be banning them on 12 that, then, let's say, it's 30 percent, I mean, how are you 13 going -- how are they going to be compensated on that? I -- 14 I wouldn't go there myself just because it's too complicated 15 and you end up distorting a company's in-house compensation 16 system in a way that -- you know, to chase after something 17 that may or -- or may not happen. 18 I think there may be other ways of getting at 19 it, but I wouldn't go there. 20 MR. DAVID BUTT: And this is something that I 21 -- I wanted to just follow up and ask on again, Mr. Moore. 22 Mr. Conacher has suggested that perhaps if you focus on the 23 decision makers inside and what they can and cannot do and 24 what they're obligated to disclose and report, and so on; do 25 you see that as -- as perhaps a more effective focus?
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1 MR. SEAN MOORE: Well, I think it is 2 important for any jurisdiction to have -- and I'm sorry, I'm 3 going to speak in the Federal idiom here, because I don't 4 know what the Municipal corresponding things are, but the 5 Parliament of Canada Act that talks about what is and what is 6 not appropriate for politicians to do vis-a-vis outside 7 interests. They certainly have the -- several different 8 provisions of the Criminal Code that -- that deals with that. 9 I'm -- I'm not sure -- see, I don't think 10 there -- my -- my approach to this is that I don't think 11 there's an awful lot of new restrictions you need to put on 12 lobbyists and lobbyist activity. I think I -- I'm with Mr. 13 Conacher on the notion of providing information in which 14 people can -- can make their -- can make their own decisions. 15 But where I -- I believe I differ from Mr. 16 Conacher, and, you know, you don't mind if I'm presumptuous 17 enough to think I think I know what you -- what -- what you 18 want to do on this, and I think it's reflected a little bit 19 in this report, another little thing I disagree with here. 20 I wouldn't put emphasis on -- on providing 21 huge amounts of information about who people are actually 22 meeting with in Government, who you're talking with and nor 23 would I require -- I mean -- I'm sorry, beyond what exists in 24 a basic registration system, a notion which I -- I support. 25 MR. DAVID BUTT: And you -- can you just help
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1 us just while we're on that topic, what would you see as the 2 -- the appropriate components of a basic registration system? 3 MR. SEAN MOORE: Basically what you have in 4 the Province of Ontario, the Federal jurisdiction, I mean 5 there's little differences which we could talk about, and 6 between all of the various jurisdictions in Canada and their 7 approach to this. 8 But it's remarkable in one (1) sense, I spend 9 a lot of time dealing with Federal and Provincial policy, I 10 don't know of any law in this country that is so -- one (1) 11 area of law, that is so similar, jurisdiction to 12 jurisdiction. 13 I mean, when Ontario was the first of the 14 Provinces to do it, they basically took the Federal Act and 15 changed a few words and a few concepts and so did the other 16 Provinces, but the similarity is quite remarkable. 17 And what they say is, if you are paid, all of 18 them except Quebec requires pay -- the Que -- Quebec doesn't 19 care if you're paid, even if you're doing it on a voluntary 20 basis you have to register, but if you're paid to communicate 21 with a public office holder, so that's a definition of 22 lobbying. 23 On anything to do with legislation, 24 regulations, policy, financial benefits, procurement, or even 25 the making of appointments, at least for a consultant
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1 lobbyist, then you must register. And what do you register? 2 You register your name, if you're a consultant lobbyist you 3 reg -- is this what you want me to describe? 4 MR. DAVID BUTT: Yes. 5 MR. SEAN MOORE: The requirements? Okay. 6 Then your name, your affiliation, in my case, Sean Moore, 7 Public Policy Advisor, Gowling LaFleur Henderson, fax, 8 business card information and then I'm required to provide 9 for any client who is paying me to communicate with the 10 public office holders for the purposes of influencing a 11 decision of Government. 12 I have to indicate who that -- the name of 13 that client, the legal name of the client, who my contact is 14 there, the President or General Council, or whatever. I have 15 to indicate what I understand to be their corporate parentage 16 and corporate subsidiaries that would have an interest in 17 whatever the issue is I'm dealing with. 18 I would have to indicate what my understanding 19 is of any fin -- any Government money that that client 20 receives from any level of Government. If they're getting a 21 million dollar human resources development training grant 22 from the Federal Government, you've got to indicate that. 23 Then I have to indicate the broad policy 24 field, or the -- the departments and the broad policy fields 25 that I am dealing with.
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1 Now, this is where it gets -- it gets more 2 detailed. For example, if it's a procurement I am supposed 3 to say what that procurement is. 4 If it's a particular piece of legislation, I 5 should be giving the number, C-58. If it's just a 6 legislative proposal, doesn't have a number yet, I'm supposed 7 to indicate that. If I am trying to lobby with respect to 8 the process, products, regulations under the Canada 9 Agricultural Act, then I have to say what regulations I'm 10 trying to change. I don't have to go into deep, deep detail 11 as to specifically what, but frankly, a lot of people do. 12 And then I have to indicate officials in which 13 department am I contacting people, I do not have to give 14 proper names or titles. What have I missed? 15 MR. DAVID BUTT: Just -- 16 MADAM COMMISSIONER: I'm sorry, if you do not 17 have to give a proper name or a title? 18 MR. SEAN MOORE: You do not have to give 19 proper names or titles, I do not have to -- I have to say 20 that I -- I'm dealing with lawyers from the Justice 21 Department, I don't have to say, I'm dealing with David Butt, 22 you know? 23 Now, pardon -- techniques, thank you. You are 24 also supposed to tick off chunk -- a bunch of boxes to 25 indicate which techniques you are using and those techniques
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1 range from written correspondence, oral communication, just 2 setting up meetings, that is a registerable, and so it should 3 be, a registerable activity. 4 You have to indicate whether you're involved 5 in what is called grass roots lobbying, there's a couple of 6 others -- categories there, but, that's essentially what it 7 is and then you are -- also have to indicate that -- this is 8 in all jurisdictions, I believe, you have to indicate whether 9 your business relationship with the client, includes a 10 contingency fee. 11 You don't have to say how much it is, in 12 Quebec there -- there's a financial reporting requirement in 13 Quebec, as well. You have to indicate whether you're being 14 paid, yes or no, on the basis of a contingency fee and if 15 it's yes, it's so what. 16 There -- there is no one (1) -- though mind 17 you, if you had a conting -- if you ticked off contingency 18 fee, and in the other part of the registration you ticked off 19 procurement you might get a phone call from somebody saying, 20 you know, explain to us what that's all about, because then 21 you could in theory, be pleading guilty to a -- something 22 else; so that's basically what the registration is. 23 And note that it is a -- it's disclosure. 24 Many people misname, not so much in this country, but they 25 call it, the LRA, is the short form, I think it's a Lobbyist
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1 Regulation Act. 2 There is no Regulation Act, it's the Lobbyists 3 Registration Act. It is strictly a disclosure requirement. 4 There are -- there is parallel to that, at the Federal level 5 and I think a couple of Provinces, what they call, Lobbyists' 6 Codes of Conduct. 7 But, they are -- sort of -- I don't know what 8 the legal term would be, but, they're outside the Act, but, 9 they're referred to in the Act. So that's the registration 10 requirement. It's -- it's been called by one (1) non- 11 admiring academic the business card bill because it basically 12 require -- most of the information that's required is the 13 sort of stuff you'd see in a business card, though there is 14 some stuff that gives a respondent --or gives observers some 15 idea of -- of what is happening. 16 Now, I should say in parenthesis, I used to -- 17 I used to own and edit a newsletter that reported regularly 18 on who was lobbying for whom and then we'd try and do stories 19 on the dynamic behind it. 20 But, the data section was really who's 21 registered, for what organization on what's issued -- on 22 which issues. And we found from the initiation of the Act in 23 '89, for about a year and a half, an increasingly voluminous 24 list of issues that lobbyists were working for people on. 25 And it became fairly clear what was happening
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1 and many admitted to it, they said, listen we just checked 2 all the boxes off because who knows, over the course of a 3 year, we could be asked to do all the -- be involved in all 4 those different issues for clients, which is possibly true. 5 But, what was more likely, for if -- if you -- 6 if you believe that people are basically devious, it gives 7 them an opportunity to obscure what they're really looking 8 at, by saying they're looking at everything. 9 And that's another example of, you know, the 10 -- the distorting effect of too much information sometimes. 11 Sorry that was a very long -- 12 MR. DAVID BUTT: Mr. Conacher, I -- having -- 13 having heard Mr. Moore express, sort of essential 14 satisfaction with the registry and -- and describe it's 15 principle features, I -- I do very much want to turn to you 16 and hear your views on those features and -- and the extent 17 to which they're adequate or inadequate and -- and why. 18 I do also note the time, Madam Commissioner, 19 eleven (11) -- 20 MADAM COMMISSIONER: It's behind me now, I 21 used to sit where you are, so I had more -- is it 11:30? 22 I'll have to -- 23 MR. DAVID BUTT: It's -- it's just a minute or 24 two (2) before but -- 25 MADAM COMMISSIONER: All right.
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1 MR. DAVID BUTT: -- the next answer, I think 2 might be a bit of a lengthy one (1) for Mr. Conacher -- 3 MR. DUFF CONACHER: If I could just talk on 4 just the two (2) quick points though before we break, related 5 to the obscurity issue. 6 There is a requirement also if you have set up 7 a coalition and have a name for it, you have to list the 8 member groups, so that is, again, so you can't sort of, set 9 up a false front. 10 And the second thing is, it is illegal to file 11 a false return and a false return, although it hasn't 12 happened yet, we -- our position as Democracy Watch is that a 13 false return would include just checking all the boxes to 14 obscure what you are actually doing because it would be 15 stating that you are doing some things that, in fact, you 16 aren't doing. 17 So that is illegal and, I think, a key part of 18 it so that you can't just say, I'm lobbying on everything to 19 obscure what you're actually lobbying on. 20 MR. DAVID BUTT: Okay. Thank you, very much. 21 MADAM COMMISSIONER: Okay. Let's break for 22 fifteen (15) minutes, okay. Thank you. 23 THE REGISTRAR: The Inquiry will recess for 24 fifteen (15) minutes. 25
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1 --- Upon recessing at 11:30 a.m. 2 --- Upon resuming at 11:46 a.m. 3 4 THE REGISTRAR: The Inquiry will resume, 5 please be seated. 6 7 (BRIEF PAUSE) 8 9 MR. DAVID BUTT: Thank you, Madam 10 Commissioner. Now, Mr. Conacher, over to you on the -- the 11 shortcomings of the lobbyist registry as -- as we've heard it 12 described? 13 MR. DUFF CONACHER: Thank you. Well, again, 14 returning to where I started with -- with the principles that 15 you want a good Government system to uphold. When you're 16 talking about transparency, what I would propose is that you 17 want a system where all that is needed to be known about 18 whether -- how a decision was made, to be able to judge 19 whether it was made based on the merits, or based on other 20 factors, is the extent of -- of the information that you want 21 disclosed. 22 So, what information does the public have a 23 right to know, to be able to judge whether a decision was 24 made on the basis of the merits? 25 Well, the classic -- the classic proposal is
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1 that you want decisions based on their merits, not based on 2 who you know or who you've hired to put forward your case, or 3 what you might have done in -- in order to try to influence 4 the decision maker. 5 And so one (1) of the gaps that we see in the 6 current system at the Federal and -- and Provincial levels is 7 that you're requiring, first of all lobbyists, to be the ones 8 disclosing who they are lobbying. 9 And when you have that system set up, you have 10 to define lobbying and you're drawing a line then between 11 paid or unpaid or spending a certain amount of time or 12 there's been at the federal level that if you're an in house 13 lobbyist, you have to -- you have to spend 20 percent of your 14 time lobbying and if you don't, if you spend 19.1 percent, 15 then you don't have to -- you did not have to under the old 16 law, this is going to change under the amended law that we'll 17 hopefully soon come into force, but, as a corporate 18 lobbyists, you could spend 19.9 percent of your time lobbying 19 and you would not have to register. 20 So, we think that's the wrong approach and it 21 would be a better approach again, focussing on the decision 22 makers, is to have the decision makers disclose who is 23 lobbying them because then you will capture paid, unpaid, 24 19.9 percent of time spend lobbying lobbyists. 25 And you will capture all the lobbying that's
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1 going on and again it places the onus, we think, on the 2 proper people, the proper actors within the system; those who 3 are required to uphold the public trust, those who have the 4 power to define the public interest. 5 So, in terms of drawing a line there, you will 6 be drawing a line between those who have real decision making 7 power and those who are in the public service generally, who 8 would just be information gatherers. 9 And in terms of disclosure, on the ethics 10 rules, I think you need the ethics rules for everyone 11 involved, but, on the disclosure you draw the line there and 12 then -- so essentially the Federal level, we have, it's not a 13 Lobbyist Registration Act, it is a some of the lobbyists who 14 are doing some of the lobbying Registration Act. 15 And the way to close that is to require the 16 decision makers to disclose who is lobbying them, but, I 17 still believe, it's Democracy Watchs' position that paid 18 lobbyists should also have -- be required to register and 19 they would register -- what they're registering now, 20 Federally and Provincially, plus a couple of other things 21 that they would know that a public office holder would not 22 know, again, if you had a system where the decision makers 23 have to disclose whom is lobbying them. 24 And the couple of other things that Democracy 25 Watch has been pushing at the Federal level and Provincially
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1 to be added to the registry, is the amount that is spent on a 2 lobbying campaign; not the fees that are paid to the 3 lobbyist, but, just a global amount, that has been spent. 4 And I raise that because federally the excuse 5 has been used that, if you require the fees that a lobbyist 6 has been paid to be disclosed, you're requiring the terms of 7 a contract to be disclosed and contracts are in Provincial 8 jurisdictions, so the Federal government can't require that, 9 but, just the global amount spent. 10 So, for a hired -- for a consultant lobbyist 11 they're hired by somebody, and their client would have to 12 disclose for all the different techniques they're using, a 13 global total. 14 Doesn't have to be down to the dollar, rough 15 figures will do in this -- in this type of category, you 16 know, to the closest thousand dollars and then -- why do you 17 want that disclosed? 18 Because not that decisions can be bought with 19 a campaign, but, for the public judging, if they look at one 20 (1) side and they said, oh, well, the lobbying on this one 21 (1) side of the issue, spent a million dollars on their 22 campaign and on the other side, they spent a thousand 23 dollars, well, that goes to the merit of whether the decision 24 was made based on the merits, or just because the one side 25 spoke more loudly because they could, because they had money.
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1 And we do believe in a system of one (1) 2 person, one (1) vote, on election day, at least. And we take 3 that principle of one (1) person, one (1) vote, and we extend 4 it to a lot of the other systems that we think should be set 5 up in terms of political donations and lobbying. 6 And if we believe in -- that each person 7 should only have one (1) vote on election day, then we should 8 have lobbying and donation systems that as much as possible, 9 uphold that system, so that no one (1) person can use money 10 or lobbying to have more influence than any other single 11 person. 12 In other words, wealth should not be the 13 determinate, or who you know, should not be the determinate 14 of whether you gain access to and what amount of influence 15 you can have. 16 So, that's why you want to disclose the amount 17 spent. Secondly, on the who you know side of things, what 18 should be disclosed is past work with the City, in this case, 19 or any of the politicians or public -- or any of the decision 20 makers. 21 So that then you would know whether the 22 decision maker is a certain person and the lobbyist happens 23 to be their -- happens to have worked for them on -- in the 24 past or, if it's a councillor, that the lobbyist may have 25 worked for them on their election campaign.
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1 At the Federal and Provincial level, it's more 2 past work -- or it's also past work with political parties 3 but given that you don't really have those at the City level, 4 you wouldn't have to include that. 5 And, again, that's to reveal to the public 6 whether the decision was made based on the merits or were the 7 actors in the decision somehow, in another way, connected 8 that might have influenced the outcome of the decision. 9 The Federal government, in the changes to the 10 law, not changes proposed by cabinet but changes that were 11 proposed by a Liberal backbencher, have changed the law to 12 require lobbyists when -- when the amendments are put into 13 force, will have to disclose past work with the Federal 14 government but not with political parties or candidates for 15 office and we think that's a gap that should be closed. 16 So those are the two (2) key flaws that we see 17 with the current systems that are out there at the Federal 18 and Provincial levels. 19 MADAM COMMISSIONER: So just in terms of the 20 past work with Federal government, you're talking about if 21 they were employed by the Federal government as opposed to 22 working with them on a particular project or lobbying them 23 once before? 24 MR. DUFF CONACHER: Not lobbying them, no. 25 MADAM COMMISSIONER: Okay.
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1 MR. DUFF CONACHER: But I think it will 2 remain to be defined, actually, what that means; past work? 3 Because it was inserted as an amendment by a backbencher 4 and -- 5 MR. SEAN MOORE: This is positions held as a 6 public office holder; isn't it? 7 MADAM COMMISSIONER: Does it say "positions 8 held as a public servant"? 9 MR. SEAN MOORE: And it doesn't just restrict 10 it to the Feds either but I -- I can get the wording for you. 11 MADAM COMMISSIONER: Okay. Who -- we can 12 find that too. 13 MR. DUFF CONACHER: Yeah, so, again, just by 14 having the amount spent and the past work, you're getting 15 revealed the -- how much -- how loudly you're able to speak 16 and the who you know factor. 17 MR. DAVID BUTT: Could I just turn to the -- 18 the issue of public officials keeping track of who contacts 19 them. First of all, what sort of detail would they have to 20 maintain and how far up or down the management hierarchy 21 would that requirement go? 22 MR. DUFF CONACHER: Well, I -- I, frankly, 23 don't know the hierarchy of the public service at the City 24 level well enough to know exactly where you would draw the 25 line, but there are definitely, for different situations,
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1 decision makers and then those who are more just serving 2 those decision makers. 3 And -- and you really want to be focussing on 4 the decision makers, at least as a start and if you have to 5 more to -- to a level that is more those who may be gathering 6 information for the decision maker if you're finding that 7 there are some things that come out then that's something 8 that could be amended in the future. 9 In terms of the level of detail, I don't see 10 any reason to go beyond what's the lobbyists currently have 11 to disclose. So it's just, who the person was, that you had 12 a meeting and the date of the meeting and -- I think would be 13 important in terms of timing and following decision making 14 processes and then the subject matter. 15 So not the full minutes of the discussion or 16 what you said, it's -- I don't think that going back and 17 forth on that you'll be getting into an area if what was 18 being talked about was a bribe, just to go to an extreme 19 example, you'd be asking the decision maker to incriminate 20 themselves, which you can't ask them to do. 21 So, just the -- the subject matter, meaning 22 what law, regulation, policy, grant, contract, or appointment 23 may have been talked about. 24 MR. DAVID BUTT: And -- and would this 25 proposal be limited to face to face meetings, or would it
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1 involve written approaches, telephone conversations, how -- 2 how extensive would you define that notion of contact? 3 MR. DUFF CONACHER: Well, the access to 4 information law is strong enough Provincially, in Ontario, to 5 ensure that written communications come out if someone wants 6 to track them. 7 And at least Provincially and Federally, many 8 of the departments, now, when they have a consultation and 9 there's a written submission they're -- they're posting them. 10 There is -- people can put in anonymous 11 written submissions, and frankly I don't quite understand 12 that -- that exemption that -- that is being allowed from 13 just regularly posting submissions that -- that come in. 14 But, I would suggest that again, as we were 15 talking about earlier, in terms of the process of decision 16 making, and making that as understandable to the public as 17 possible, that -- that Cities, and -- and Toronto's certainly 18 of the size to be able to -- to do this, both technically, 19 and not that the cost is exorbitant or anything, but to -- to 20 be putting written submissions up onto -- onto a website 21 that's searchable for each different decision that's going on 22 and -- and I think that's a good recommendation to be making 23 to the City. 24 I don't see much of a difference than between 25 a phone call or a face to face, you know, because it can mean
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1 -- and I think we're moving in a direction where it will be 2 video conferencing in any case. So -- so, I would say the 3 oral -- and oral communications, whether it's face to face or 4 not, would have to be put up there. 5 And in terms of frequency, well, I think it is 6 quite possible to have it set up in such a way that 7 assistants who are keeping the meeting logs and the phone 8 logs for all of these decision makers, can have a computer 9 screen in front of them, where they can be updating things 10 regularly, if not every -- every quarter at least. 11 MADAM COMMISSIONER: What would -- what would 12 you see happening with this information? 13 MR. DUFF CONACHER: Well, again it -- it goes 14 to the public's right to know all of the information they 15 need to know to judge whether this -- 16 MADAM COMMISSIONER: No, I -- I understand 17 that -- 18 MR. DUFF CONACHER: -- was made on the merits. 19 MADAM COMMISSIONER: -- but I'm saying if -- 20 if you have your civil servant who gets say three (3) phone 21 calls from one (1) person, a written submission and two (2) 22 face to face meetings all from the same individual 23 representing the same company -- 24 MR. DUFF CONACHER: Yes. 25 MADAM COMMISSIONER: -- what are they -- what
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1 is it that you would have them do with that information? 2 They're duly noting it all down -- 3 MR. DUFF CONACHER: Oh. 4 MADAM COMMISSIONER: -- then what do they do 5 with it? 6 MR. DUFF CONACHER: Put it into a registry 7 that's fully searchable -- 8 MADAM COMMISSIONER: Okay, I see. 9 MR. DUFF CONACHER: -- that's on the Internet. 10 And then you will see the media writing stories, and the 11 various stakeholders in any decision will be scanning it. 12 To give you a concrete example, we requested 13 in late 1996, from the Junior Minister of Finance at the 14 time, Doug Peters, who was responsible for Financial 15 Institutions Legislation, a list of everyone he had met with, 16 or gone and spoken to at public events, back to early '95, 17 when a policy making process changing financial institutions 18 laws Federally, began. 19 And he gave us the list, and it showed that he 20 had met with industry groups forty-nine (49) times and had 21 spoken to nine (9) industry conferences through that time, 22 and had not met once with a citizen group, consumer group. 23 So, we did a news release saying it's not 24 surprising, because he then subsequently introduced 25 amendments to financial institution laws, which did not
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1 contain any consumer protection provisions, despite the fact 2 that several consumer groups had been pushing for them. 3 And we did a news release saying it's not 4 surprising, given that he didn't hear from any consumer 5 groups, through his whole policy making process; at least 6 face to face, and that he was at the same time, going to 7 industry conferences and meeting face to face with industry 8 and we know ourselves, and many other consumer groups, 9 requested meetings with him. 10 So, then the -- the public can look at that 11 and say, well, he didn't really consult in a fair way, he 12 only heard one (1) side directly and judge whether then his 13 decisions not to include any consumer protection provisions 14 in the amendments to the law, was a decision made in the 15 public interest and based on the merits. 16 There is a requirement in the code for -- the 17 Conflict of Interest code, the ethics rules generally for 18 Ministers, to make decisions on the merits and I think in 19 that case, he could not show that he had done that. 20 So, that's how the information would be used, 21 but, also having it up on a searchable website is -- 22 MADAM COMMISSIONER: I'm trying -- 23 MR. DUFF CONACHER: -- increases access. 24 MADAM COMMISSIONER: -- to put myself in the 25 individual's position at, say, a much lower level, involving
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1 a procurement of a bunch of chairs. Okay, to make something 2 a little less innocuous. 3 And if I'm the Director of a particular 4 division that needs fifteen hundred (1,500) new chairs, I 5 would work on the assumption that I should be finding out 6 what are the best kind of chairs that we're going to need et 7 cetera, but, if I'm part of a registry where somebody 8 contacts me, and I have to put down that they've contacted me 9 and what they've talked about, so I say that A contacted me, 10 B contacted me, C contracted me, or maybe C contacted me 11 eight (8) times. 12 And it may be that because I'm not putting 13 down in that registry all the other work that I'm doing on my 14 own, in terms of reading all of the industry papers, or 15 anything like that, that the impression is given, that if I 16 selected C who contacted me eight (8) times, that I've -- I 17 was sort of bought off, as it were, by C when in fact, it may 18 be that I looked at all that and then I went and did a whole 19 pile of my own research and none of that gets trapped. 20 MR. DUFF CONACHER: Well, actually at the 21 Federal level, if you were in that position, you would have 22 to circulate all of the information or someone contacting you 23 to the other bidders. 24 So that's a current rule in the Federal 25 system. All we're saying is, why just to the other bidders?
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1 Why doesn't the public also get to see this information? And 2 that rule is there, so that the other bidders know if someone 3 has written and said, what is this term of reference mean 4 actually, because we're not quite sure, and we'll design our 5 bid one (1) way if it means something and design it another 6 way, if it means something else, to you as decision maker. 7 MADAM COMMISSIONER: Are you talking then 8 about a post RFP, or are you talking about a -- 9 MR. DUFF CONACHER: Yes -- 10 MADAM COMMISSIONER: -- okay. All right. 11 That's -- I was thinking of a pre-RFP. That was my problem. 12 MR. DUFF CONACHER: Right. 13 MADAM COMMISSIONER: Okay -- yes -- 14 MR. DUFF CONACHER: Well, even in a pre-RFP, 15 you're being lobbied then by possibly by A, B or C and we 16 think the public has a right to know. And when you say well, 17 I have to write it down, people write down when they have 18 meetings, they have meeting logs already. It's not an 19 additional writing down burden, that someone comes to -- 20 MADAM COMMISSIONER: I'm more concerned, Mr. 21 Conacher, not with the writing of it down, but, to ensure 22 that the information that is captured is completely accurate. 23 MR. DUFF CONACHER: Sure. 24 MADAM COMMISSIONER: And so if all I have to 25 write down is who I spoke to, but, not all the work that I
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1 did in reading all the industry papers on something or 2 another, then it doesn't give the full picture of what it is 3 that I've actually done. 4 MR. DUFF CONACHER: Oh, yes, and that goes to 5 our earlier point, Mr. Moore and I agree on this, that 6 governments should be doing much more to explain how they 7 make decisions to the public. 8 So there's no -- I think it should be a 9 requirement, as well, that they set out, here's what we're 10 doing, in advance any decision maker, here is what we're 11 thinking of as the best option for doing this and then having 12 the link to send the email or all the contact information to 13 let us know what you think about, what we're thinking of 14 doing. 15 And the more that government -- any government 16 does that, the more they can show that the decisions were 17 made on the merits and the suspicion level that's out there 18 among the public, is largely based on I think the secrecy 19 that various decision makers try to maintain. 20 Some because they have an agenda, some just 21 because it's always been done that way and some because they 22 have been told by a superior keep this secret, while we 23 consider our options, but, the public has a right to know, I 24 believe, in advance, the options that a government is 25 considering.
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1 MADAM COMMISSIONER: Okay. Mr. Butt? 2 MR. DUFF CONACHER: And all the research 3 work, as you mentioned, that the government officials may be 4 doing to develop a particular decision. 5 MR. DAVID BUTT: Mr. Moore, thoughts on this 6 notion of public servants disclosing contacts? 7 MR. SEAN MOORE: I think in an age in which 8 public servants are already overwhelmed and under-resourced, 9 this is -- this would just be too much, simply put. Someone 10 -- an MP once described to me trying to reach someone in a 11 government department only to find out that half of them were 12 on accountability training, the other half were on stress 13 leave. 14 I think that's part of the reality of what's 15 happening in government now. The -- the -- what we're 16 expecting from them I think far exceeds their ability to 17 deliver and by adding what would be an overwhelmingly complex 18 system of having to record -- I mean, forget the public 19 servant, let's go up to the politician, the real decision 20 makers. If you go to the decision maker level, one of the 21 things that politicians feel that they have to do is get out 22 there and meet people, go to conferences, you know, go to 23 community events. 24 If you've ever spent any time with a 25 politician at that, it's a -- you know -- I have no idea why
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1 anyone runs for public office these days, but the number of 2 times people come up to you and are pitching you on 3 something, suggesting something, you know, giving your two 4 (2) cents worth in this that or the other thing. 5 For them to then have to somehow go back or 6 have someone following around with them, you know, so and so 7 pitched you on gun control, so and so pitched you on this; 8 and figure out, you know, which ones were paid to do it, 9 which ones weren't. 10 I mean, just sheer volume of that information, 11 I think, becomes a problem and, as the Commissioner noted, it 12 can lead to some -- I think some spurious conclusions. I go 13 to the other end and I think, again, this is something that 14 Mr. Conacher and I, I believe, agree on. 15 I think some of these things can be addressed 16 in terms of transparency, in terms of the learning process 17 that you would hope governments are constantly providing to 18 the electorate on how they make decisions and when and what 19 their -- what their priorities are, what their values are. 20 What's -- they're elected to make decisions or 21 they're appointed to help in the making of those decisions 22 and, yes, should they -- should there be much more emphasis 23 on the quality of information and insight that decision 24 makers are required to provide as a rationale for their 25 decisions, absolutely.
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1 But I will admit that that is like a lot of 2 other things we're talking about today, it's a lot easier to 3 talk about than to actually do them, but I think that's the 4 end of it that would -- that would pay greater dividends and 5 -- and I think improve a lot of public administration and 6 political culture we have in Canada, though it's very 7 difficult to set rules for that. 8 But in terms of saying that -- I mean, for 9 example, on some of the things that you've been dealing with 10 on this part of this particular Inquiry, I mean, to what 11 extent was there an explanation by the decision makers of 12 what was done, what the process was and what the influences 13 were? 14 Obviously, that's part of the mandate of this 15 Inquiry, but to what extent did politicians and public 16 servants play a role in explaining -- explaining that. The 17 idea of a log, I can -- I can understand entirely the appeal 18 for it, but I think it is simply more than the system can 19 endure and that there are other ways of gaining the benefit 20 of -- the benefit being a more informed electorate, aware of 21 more important information about how government makes 22 decisions. 23 And one of those bits of information is, who 24 was being paid to work on influencing that decision of 25 government which is, essentially, what lobbyist registration
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1 systems are. 2 MR. DAVID BUTT: If I could just throw in -- 3 I want to get to quickly, Mr. Conacher, is just throw another 4 piece of information into the discussion so we can try to 5 look at this from a bit of a municipal context, we have, 6 again very roughly in a very summary form, a decision making 7 process that involves staff reports to Council, that are in 8 themselves public documents. 9 So, there would be analysis and -- and 10 recommendations and then of course there's a -- a debate 11 before a decision is -- is taken in -- in Council. 12 Now, obviously not every minor procurement is 13 subject to that process, but thinking of that process for the 14 moment, and assuming that some major procurement issues would 15 be subject to that process, or -- or policies around -- that 16 involve procurement issues, if I can put it that way. 17 Do you see any potential -- first, Mr. Moore, 18 to address some of those concerns around explaining decision 19 making can be realized through that process? 20 MR. SEAN MOORE: Well, if I -- I can try and 21 answer that by talking about another thing as well that you 22 had mentioned, that's the role of officials versus -- versus 23 bureaucrats, when -- when you're talking about influence -- 24 or officials versus -- elected officials, when -- when you're 25 talking about influence.
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1 I think it's very important, and -- and this 2 is one (1) thing that even many -- people who you would think 3 would know better about government, I don't believe 4 understand and that is of all the decisions that are made by 5 government these days, Provincial, Municipal, and Federal. 6 Well, I'll stick with what I know better, 7 Provincial and Federal. The vast majority of those decisions 8 are politicians looking at the advice and analysis from their 9 officials, and nodding and saying, yes, it sounds like it's 10 been well thought through. I don't know what the proportion 11 is, I think it's probably 95 percent of the decisions are 12 made that way. 13 So, the importance of the officials is 14 enormous, in our -- in our -- in our system of Government. 15 It is why any wise, prudent, strategic mind lobbyist or 16 advocate is focussing on that. They want to focus on the 17 people who write the briefing notes, who frame the issues, 18 who lay out the pros and cons, who make the recommendations. 19 And that's not to say that you -- especially if you were 20 losing the argument, you don't want to go the political 21 route. 22 One (1) of the most commonly asked questions 23 in lobbying is heard by companies and by interest groups is 24 how do we get in to see the Minister. Now, that is almost 25 always asked by people who know they are losing the argument.
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1 Those who are winning the argument, those who 2 are confident they're going to get a result, are usually 3 those who for whatever reason, maybe they shouldn't know 4 this, but they do, that the public servants who are expert in 5 this area, think that this is a good idea, it's working its 6 way up the system. 7 The perfect outcome for a lobbyist is that 8 when it finally gets up to the Minister's office, it's one 9 (1) of twenty (20) things he's just initialling, it's done, 10 because the process has been so thoroughly worked. 11 So, the role of the officials is extremely 12 important. Maybe less so -- I don't know, I can't make a 13 comparison between Municipal, and certainly when you look at 14 an enormous Municipal Government like that of Toronto versus 15 Aurora, Ontario, but I would think that the role of 16 officials, certainly the Municipal work that -- that I've 17 done, has always focussed on the -- on the officials. 18 You only go political if you start to see a 19 problem with that, and you want some sort of general policy 20 direction to be changed, or you want some constructive second 21 guessing happening, when the political decision is made. 22 So, I'm sorry, I spent a fair bit of my time 23 about that, and that's not maybe where you wanted me to go on 24 the question. 25 MR. DAVID BUTT: No, but recognizing that
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1 importance, and assuming for the purposes of this discussion 2 that that importance does exist at the Municipal level and 3 the staff recommendations do carry considerable weight, that 4 they are public documents and they're the foundation for 5 Council debate, which may or may not be -- 6 MR. SEAN MOORE: And that is more transparent 7 at the Municipal level, as Mr. Conacher pointed out. The -- 8 the reality of what happens in Parliamentary Government is a 9 lot of that stuff is secret, Cabinet documents are secret. 10 The -- the Access to Information Commissioner 11 in Ottawa has been -- has been suing the Federal Government 12 for the last couple of years, in fact, he's an interesting 13 guy to talk to about this, because he argues that there are 14 some parts of Cabinet documents that should be in the public 15 domain and that is the part that discusses the pros and the 16 cons. 17 I mean, you'd still keep out -- there are 18 certain things relating to Federal and Provincial relations 19 and national security and that, that could be except, but, by 20 and large, the framing of the issue, how the government's 21 looking at the issue, should be very, very important 22 information and at Provincial and Federal levels, never is. 23 MR. DAVID BUTT: Can you talk to us them about 24 the wisdom, again in the municipal context, given that that 25 pro and con analysis is already public, do you -- and I'll
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1 address this to both of you, have a -- have a sense of the 2 wisdom of in those stack reports, that are prepared and 3 generated for public consumption in any event, having some 4 content related to contact with lobbyists, in the policy 5 development process that's lead to the recommendations found 6 in the report. 7 Mr. Conacher, do you want to address that 8 first? 9 MR. DUFF CONACHER: Yes, and just as part of 10 that to -- to counter somewhat what Mr. Moore raised, his 11 objections to having such a log or reporting of this. It's 12 easy to reduce that proposal to an absurd level and then 13 dismiss it, a common debating technique. 14 But, I wasn't proposing that when someone is 15 at a community event and someone comes up to them, that 16 that's something that's logged. Why? Because it takes place 17 in public. 18 A meeting in the office of the Councillor or 19 staff person, or a phone call to that office, is not 20 something that takes place in public and it's not a huge 21 administrative burden. People have DayTimers, many of them 22 have electronic DayTimers, these days. 23 They have assistants that log their calls. 24 It's very simple to put this up on a website. And I'd -- I'd 25 pose it again, this proposal in this context to the Inquiry,
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1 how much easier would this Inquiry's job have been to find 2 out what has happened, if such a log had existed and all that 3 information about who met with whom was already out there? 4 In terms of staff reports, yes, again staff 5 report should be as much an explanation of the process as 6 possible and that will only help not only -- the Councillors 7 judge whether they should listen to the staff report. 8 If they only met with stake -- stakeholders 9 from one (1) side of an issue, and then made a 10 recommendation, then the Councillors should sit there and go, 11 well, wait a second, what about these other stakeholders, why 12 didn't you hear from them directly? 13 And -- and again, it will educate the public 14 and although for some reason, I don't understand it, it's -- 15 but, this -- this secrecy about this, it can help control an 16 agenda, but, it certainly doesn't help defend an agenda. 17 So, it would also very much help City 18 Councillors, in terms of saying to the public, who may charge 19 the decision was made undemocratically, unethically in some 20 way, to show as much as possible, about the process; to say, 21 no, look we did hear from everybody, we did consider 22 everybody. What we didn't do was adopt everyone's idea, 23 because it's impossible to do, because you'll have 24 conflicting ideas. 25 So, yes, staff reports should contain all of
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1 that information. There should be a requirement and a 2 template format, is the way to always do this, where they 3 fill out certain things and that has to be part of every 4 staff report. 5 I know there are some requirements in that way 6 now, but, there should be more, in terms of disclosure of the 7 process and who was talked to, et cetera. 8 MR. DAVID BUTT: Mr. Moore, thoughts on that 9 municipal staff report to Council and -- and disclosure of 10 lobbying activities and -- 11 MR. SEAN MOORE: I see that materially 12 different than the log and registry idea. I like this idea 13 and -- and the way that Mr. Conacher idea, I think it's fine, 14 having it in staff reports and the like, in fact, that is 15 required, I don't know whether it's the case, in terms of 16 cabinet office in Ontario requiring it. 17 But, in the -- in the drafter's guide of 18 memorandum to cabinet, which is the bible for Federal public 19 servants, when they're drafting cabinet documents, there's a 20 section in there that requires, right in the cabinet 21 document, that the public servant to describe what sort of 22 consultations were held, with other governments, Federal 23 Provincial, with stakeholders groups and with even with 24 caucus. 25 So that requirement is there, but, again
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1 that's a confidential document unfortunately. So I think the 2 idea of having or requiring in a staff document, for the 3 public servants to explain what kind of consultations were 4 held and what different points of view were offered, I think 5 that would be great. 6 I mean I'd be surprised if there's not some of 7 that done already in many respects, but, I think formalizing 8 it is certainly consistent and is a good operational 9 suggestion to what I was describing, just in principle, just 10 explaining more about the different points of view expressed 11 on an issue. 12 MR. DAVID BUTT: In a staff report and, 13 again, I go back to this because we've had some debate on 14 this; what level of detail would you recommend be in a staff 15 report on a major initiative that may or not involve some 16 procurement about lobbyist presence? 17 Should there be a full log of all contact in 18 the -- in the run up to that report? Should there be a 19 general description of the types of contact? And, again, I 20 ask that question because we have differing views on the 21 functionality of logging calls based on the level of detail 22 required? And I'll ask Mr. Moore, perhaps, to go first on 23 that. 24 MR. SEAN MOORE: Oh, I don't know. You could 25 make it very, very detailed and it would just take forever to
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1 do. I guess I -- I would be inclined to just have, as Mr. 2 Conacher pointed out, some sort of a template that they fill 3 in, but does it need to be absolutely comprehensive and 4 capture every contact with every individual, you know, I -- I 5 guess I would incline to say that the directive should be 6 that Council wants a fairly broad and thorough explanation of 7 the -- of the views that were presented and how they are -- 8 and especially identifying those that differ substantially 9 from what the recommendation is and why, perhaps, certain 10 courses of action were taken. 11 But, I -- more -- the more precise detail, the 12 more -- I mean, I just can't imagine that being done with 13 anything but the biggest of issues. And, again, I think we 14 need to look cumulatively at this. Are we just talking 15 procurement or are you talking about the way city hall works 16 generally? 17 You know, the notion that procurement is the 18 only one where big bucks are involved, the bulk of the work I 19 do is regulatory. Changing three (3) words in a little 20 regulation that can mean half a million dollars ($500,000) a 21 year more profit for our client. 22 I mean, the amount of effort that goes into 23 changing little things at Provincial and Federal levels, let 24 alone, for instance, the impact on a zoning decision in -- at 25 the Municipal level. So, you -- you add up the cumulative --
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1 the cumulative, the range of decisions that governments make 2 every day and I think we need to be very careful about what 3 we expect the paperwork associated with those has to be. 4 MR. DAVID BUTT: An important point that I 5 think I hear coming from what you're saying is that, from the 6 perspective of incentive to influence decision, we have to 7 recognize that there can be a tremendous financial incentive 8 in the commercial sector to influence decision making that is 9 not procurement related but can be -- 10 MR. SEAN MOORE: Oh, enormous. 11 MR. DAVID BUTT: -- policy related? 12 MR. SEAN MOORE: Oh, enormous. I mean, just 13 look at the big issues of our day. The issue of whether or 14 not healthcare should have a larger role for private sector 15 investment. Enormous dollars involved in that. The great 16 issues at the municipal level these days are whether you 17 privatize water supplies. 18 What do you do with Hy -- electricity. I 19 mean, power -- I mean, every one of these have enormous 20 policy allocative decisions that may ultimately, downstream, 21 result in a contract here and a contract there, but, I don't 22 know, there's no end to the -- the enormity of it and 23 different people have different stakes in different parts of 24 the system. 25 MR. DAVID BUTT: Mr. Conacher, then your
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1 thoughts on what you'd like to see in municipal reports by 2 staff to Councillors in terms of contact with lobbyists? 3 MR. DUFF CONACHER: Well, again, I propose 4 that there be a log and a registry that's searchable of all 5 contacts for all different types of decisions. And I don't 6 see the administrative burden. I don't think, when it's 7 looked at, it would -- you'd be able to hold up that argument 8 and actually show that the administrative burden would be so 9 onerous that it's not a good idea. 10 It is a good idea. Why? Because it adheres 11 to the democratic principles of transparency, merit-based 12 decision making and the public's right to know how decisions 13 are made and it's getting easier and easier as various 14 Internet tools are developed. 15 So, there's -- there's really I think, no 16 argument against it, that is based on democratic or ethical 17 principles, it's an argument based on just continuing to be 18 able to try and hide things from the public, that the public 19 has the right to know. 20 MR. DAVID BUTT: And -- 21 MR. SEAN MOORE: I think that's always the 22 motivation. 23 MR. DUFF CONACHER: I believe, yes, that I 24 mean if other -- well, unless you -- you can state another 25 principle basis for rejecting the idea of a log of who's
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1 meeting with whom. Administratively it's possible, that's 2 not a basis of democratic governance or ethical governance, 3 that administratively it might be a bit more difficult. 4 MR. DAVID BUTT: I'd like to move, if I could, 5 to another important topic around lobbyists, and that is the 6 whole notion of lobbyists playing a role in political 7 donations. 8 Now, I understand that the movement Federally 9 of course, is to address political donations head on. But 10 again, thinking in terms of the Municipal context, one sees a 11 practice of occasionally where a lobbyist might deliver 12 donations on behalf of a client. What's going on there? Is 13 it from the lobbyists perspective, what's in it for the 14 lobbyist, and is that something that should be encouraged or 15 discouraged? Mr. Moore, can you speak to that first? 16 MR. SEAN MOORE: I've often said, even though 17 I'm a big supporter of the Lobbyist Registration Act, the 18 country needs a Lobbyist Registration Act a lot less than it 19 needs a Consumer Protection Act, for the clients of 20 lobbyists. 21 Well, what's going on there. There's an awful 22 lot of -- of posturing and imaging and that sort of thing 23 that goes on when -- when lobbyists do that. 24 What -- what -- they're -- they're sending two 25 (2) signals. They're sending one (1) signal to the client,
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1 that they are the ones who -- that there's some benefit to be 2 gained by having a lobbyist deliver it. I'd love to hear 3 their explanation of that to the client. 4 And clearly they think that the benefit is 5 that the -- for them, is that they are seen as if not the 6 source, at least the facilitator of -- of financial largess. 7 So, what's going on there? Well, nothing very 8 pretty, it may be perfectly legal, but nothing very pretty. 9 I think the only way you can really deal with this is to talk 10 about limitations on -- on political donations, talk about 11 limits on -- on the spending, both of which -- both of which 12 we have in this country. 13 Is there a -- is there a role for precluding 14 this notion of bundling, and certain people delivering it. 15 If you look through State level law in the United States, 16 there are numerous restrictions on lobbyists, for instance, 17 not being able to make contributions at certain times of the 18 year, they can't do it when the house is sitting in certain 19 jurisdictions, some lobbyists I think are precluded outright 20 from making political contributions. 21 I don't know -- I don't know what to say about 22 that, again, it's -- it's disturbing if you've got that kind 23 of -- that kind of behaviour with the unfortunate optics 24 associated with it. I think the only way you can really deal 25 with it is to have good trans -- not -- not a good
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1 transparency, in terms of -- in terms of volume of financial 2 contributions and where they go, and -- and -- and good 3 strict limits, but beyond that, I don't know what else you 4 can do. 5 MR. DAVID BUTT: Mr. Conacher...? 6 MR. DUFF CONACHER: Again, starting from the 7 principle of one (1) person one (1) vote, if you believe on 8 that on election day, then you want to have a donation system 9 that upholds that principle in between elections, which means 10 you need a system where no one (1) person can donate more 11 than what an average person could donate, and not able to in 12 any way use money, and I would extend this to gifts as well, 13 just any transfer of economic benefit, financial benefit, to 14 any decision maker, must be limited to that extent that the 15 principle of one (1) person one (1) vote is upheld. 16 So, what have various jurisdictions done? Mr. 17 Moore has mentioned some examples. Quebec a couple of 18 decades ago and Manitoba more recently, banned non-voters 19 from donating. 20 Corporations, unions, other organizations do 21 not vote, so upholding the principle of one (1) person, one 22 (1) vote, we will ban -- they banned all donations from those 23 entities and then they both limited donations from 24 individuals to three thousand dollars ($3,000). 25 Democracy Watch's position is that the limit
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1 should be one thousand dollars ($1,000), as a maximum and 2 could be even lower on a City level, depending on the size of 3 the City because it goes, in part, to the costs of 4 campaigning then we're usually talking about donations, in 5 order to be able to run campaigns. 6 And but -- at the City level -- you know, 7 geographically in terms of population, Toronto is as far as I 8 know, about the seventh largest government in the country now 9 and on geographically, there is even travel cost issues, now, 10 depending on the position you're running for. 11 So, but a thousand dollars ($1,000), we 12 believe, is not a level that creates a conflict, that a 13 decision maker would not, for one thousand dollars ($1,000) 14 do something for someone and also again upholds the principle 15 of one (1) person, one (1) vote. 16 MR. DAVID BUTT: How about the notion of 17 bundling then, where a lobbyist collects a number of, say 18 it's one thousand dollars ($1,000) donations, and forwards 19 them to the politician of his or her choice, as a bundle? 20 MR. DUFF CONACHER: No, that kind of practice, 21 I think, should be banned and as well, what has happened with 22 the Federal law and also is in the new Federal law that's 23 just come into effect, which doesn't ban corporate union 24 organizational donations, but, limits them to a thousand 25 dollars ($1,000) and puts a limit for individuals of five
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1 thousand dollars ($5,000), is that you can't funnel a 2 donations through any other entity or person, in order to in 3 any way hide where it's actually coming from. 4 So, I would add as well, that I think that 5 kind of bundling and delivery by a lobbyist should be also 6 made illegal. 7 MR. DAVID BUTT: Even if, just so we're clear, 8 even if the source of the funds is made clear. So the 9 lobbyist sends a covering letter, here are sixteen (16) 10 donations, you know, this much from this person, that much 11 from that person, even if the original source is not 12 obscured, you'd maintain the same position? 13 MR. DUFF CONACHER: Yes. That that kind of 14 collectivizing of funds is -- should be banned. And in 15 effect it is, in a way, not exactly equivalent to a lobbyist 16 delivering the donations, but, Federally and the Provincial 17 laws have this, as well, a corporation can't set up a bunch 18 shell corporations, donate the thousand dollars ($1,000), and 19 then send a cover letter saying, well, us as parent were only 20 allowed to donate a thousand (1,000), but, just to let you 21 know, in case you were wondering, the donation from numbered 22 corporate 0013, to 0065, that those fifty two (52) donations 23 each of a thousand dollars ($1,000) actually comes us, as the 24 parent company; that is also illegal. 25 So, that kind of bundling by a corporation in
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1 house with its lobbyists, delivering that same message, has 2 been made illegal and I think it should be made illegal for 3 consultant lobbyists, to in effect, do the same thing, by 4 delivering the donations en masse, on behalf of a bunch of 5 clients or a coalition they may be representing. 6 To send that clear message that we're getting 7 around the donation limits and we're sending a message to 8 you, that it's fifty thousand dollars ($50,000) that you're 9 going to be out if you don't do this, not just a thousand 10 dollars ($1,000). 11 MR. SEAN MOORE: You could be a bag man, or 12 you could be a lobbyist, but, you couldn't be both. 13 MR. DUFF CONACHER: Essentially, yes. 14 MR. DAVID BUTT: Just to pick up on a thread 15 that we heard earlier, just in terms of other kinds of 16 economic benefits, other than donations at election time. 17 I'll start with you, Mr. Moore, do you have 18 any thoughts on lunches, dinners, gifts, the appropriateness 19 of limiting those? 20 And I'm thinking in terms of both elected 21 officials and staff and where you might draw lines, if any? 22 MR. SEAN MOORE: Well, you know, there are 23 some jurisdictions that are very strict about that and the 24 strictest one that I know of is the Government -- Federal 25 Government of the United States where if you -- you simply
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1 cannot take an official out to lunch. They've got to pay for 2 their own lunch. 3 And, in effect, I was just writing a column on 4 this right now, in effect, the new -- not the new wording of 5 the gifts and hospitality policy for public servants, the -- 6 the wording hasn't changed but I'm told the approach, and the 7 attitude and the enforcement of it has changed dramatically. 8 I'm told now that, at the Federal level, it's 9 no gifts, no hockey tickets and only modest hospitality and 10 they have a bunch of words around each one to describe what 11 those things are but -- 12 MADAM COMMISSIONER: Mr. Moore, are you 13 talking, federal in Canada or USA? 14 MR. SEAN MOORE: I -- I'm sorry, I did switch 15 to Canada. 16 MADAM COMMISSIONER: Okay. 17 MR. SEAN MOORE: The -- there are two (2) 18 under -- since the advent of the Martin administration two 19 (2) things have happened, he has -- he has promulgated a new 20 code of conduct for public office holders. 21 Now, it's curious to note his definition of 22 public office holders for the purposes of these ethics rules 23 is narrower than the term public office holder used in the 24 Lobbyist Registration Act. 25 In the Lobbyist Registration Act, that
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1 includes everyone elected, their ministerial -- their staff, 2 MP's staff, includes public servants at any level, Order of 3 Council appointments for the -- for the Prime Minister's new 4 guidelines on -- under conflict of interest rules for 5 ministers for ordering Council appointments, Governor of 6 Council appointments, senior bureaucrats and for 7 parliamentary secretaries, it's one set. 8 For all other public servants below the level 9 of deputy minister they fall under the rules of the Treasury 10 Board. And then there's going to be a third group which are 11 Senators and MP's who will be -- fall under the purview of 12 new guidelines to be introduced when they finally get around 13 to appointing their new House and Senate Ethics Councillors. 14 The Federal level allows anyone who's a 15 Federal public office holder -- the group one, we'll call the 16 senior level, they can accept gifts and hospitality of under 17 two hundred dollars ($200) from any one source in the course 18 of the year providing it meets a few other tests and one is, 19 is it -- is it an appropriate level of hospitality and that 20 sort of thing. 21 Curiously, the rules, if you look on the face 22 of them, they're much stricter for public -- lower level 23 public service than they are for the senior ones. There's a 24 bit of an anomaly there, but, do I think those sorts of -- is 25 the question; are -- are those sorts of levels appropriate or
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1 -- yeah, I think something along that lines is appropriate to 2 maintain public confidence that you're not having excessive 3 hospitality to be -- to be gained. 4 In Ottawa, I was surprised it hasn't turned up 5 as a story, this -- this new policy is going to be 6 devastating for the restaurant industry. It's going -- it's 7 making life much more complicated for a professional hockey 8 franchise, because you are now having, not only ministers but 9 officials saying, can't take those Senators tickets, sorry. 10 Or maybe we'll just go buy a sandwich down at 11 the deli, we're not going to go to one of the better 12 restaurants in Ottawa. Now, that's very unfortunate for the 13 restaurant industry but it probably it's -- it's a lot 14 clearer now. Even though the words haven't changed, the 15 enforcement and the attitude towards them have changed rather 16 considerably. 17 MR. DAVID BUTT: So, we just -- just to 18 elaborate on this, as I understand then, in terms of 19 categorization, drawing distinctions between actors, you have 20 essentially senior management and whether they're elected or 21 non-elected, you -- you have a distinction between senior 22 management and then -- 23 MR. SEAN MOORE: That's right. 24 MR. DAVID BUTT: -- lower level public 25 servants with the MP's, sort of, being off in a -- in a third
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1 category. 2 Mr. Conacher, any -- any thoughts on, again, 3 the appropriateness of those kinds of limits and this 4 distinction that's drawn not between elected and non-elected 5 but between senior and less senior or more junior? 6 MR. DUFF CONACHER: Well, the limits are 7 appropriate and, again, it goes to some work that's been done 8 by psychologists to -- on the science of persuasion and what 9 they've been able to show through various tests is that if 10 you give something to someone then they feel an obligation to 11 do something in return. 12 And -- and that is a psych -- psychological 13 state that's created by a gift. And -- and so in terms of 14 the -- the limits, I think the -- the limits at the Federal 15 level are -- are pretty appropriate of the two hundred 16 dollars ($200) maximum per year, and as well -- 17 MR. DAVID BUTT: Just -- just for 18 clarification, is that two hundred (200) maximum per year per 19 gift giver? 20 MR. DUFF CONACHER: Yes, it is. And -- 21 MR. SEAN MOORE: Source, source. 22 MR. DUFF CONACHER: For the source. But there 23 is also a blanket rule in the Federal Code that says no 24 matter what, the limit, the two hundred dollars ($200), if it 25 is a gift that could influence the public office holder,
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1 which would be a subjective judgment about maybe it's 2 something, that -- worth less than two hundred dollars 3 ($200), but so important to them for whatever reason you 4 could think of, that it has to be declined, if it could 5 influence; so there -- that blanket rule is there as well. 6 I disagree very strongly with Mr. Moore about 7 enforcement, the enforcement system at the Federal level has 8 not changed at all, there is no independent enforcement body 9 that has any investigative powers at the Federal level. And 10 -- and as well, there's no real penalties, and it's all done 11 in secret, though -- the -- the looking into any situation, 12 and the report is -- is still secret. 13 So, the enforcement regime will hopefully be 14 cleared up by a bill that is supposed to come back to 15 Parliament when it opens in February, but having the 16 restrictions apply, they should apply across the Board, 17 because even with an information gatherer, as opposed to a 18 decision maker, if the information gatherer sufficiently 19 distorts the information, they can influence the decision 20 that's made. 21 So, there shouldn't be a senior versus junior 22 level distinction, and for all you need fully independent, 23 fully empowered, a watchdog, that is ensuring that the rules 24 are enforced, as I mentioned earlier, and the whistle blower 25 protection as well in there, and other measures to ensure
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1 that the rules are followed. 2 MR. DAVID BUTT: Mr. Moore, can I ask a 3 question, drawing on your experience working on behalf of and 4 in the -- the private sector organizations? What's the 5 reaction to things like limits on campaign donations, and 6 prohibition of these kinds of gifts, is the perception that 7 -- is there a perception that that will inhibit the -- the 8 effective functioning of -- the effective pursuit of private 9 sector's legitimate commercial objectives, when they're 10 dealing with the public sector? 11 MR. SEAN MOORE: Well I -- I am certainly in 12 no position to speak for clients on that, they'll all have 13 their -- their own views. You know, I've -- some that I've 14 talked to in the last little while are relieved that they're 15 not going to get bugged about this anymore. 16 The amount of -- of pitches that are made by 17 party bagmen of different sorts, I mean they -- the former 18 Chairman of the Royal Bank of Canada, Mr. Allan -- I thought 19 -- Allan Taylor, said it very well. He -- he said he found 20 it really repugnant to have to deal with bagmen who were 21 coming in, one (1) instance talking about, you know, you need 22 to support the system, and the other sort of hinting and 23 winking that supporting the Government that does... 24 So, I think good -- but I think there's a 25 number of people who -- who agree with that. However, I can
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1 also say, that I've talked to some who've said listen. Is -- 2 do you think this is going to limit in any way, our access to 3 decision makers? Are we going to be limited in any way from 4 being able to talk to these people by this? 5 To which I've said, well, I think there's 6 other ways of accessing them, beyond cutting them cheques, 7 and, yes, you need to spend more time thinking about that, 8 and -- and doing a perfectly legitimate part of our open -- 9 our open system. 10 But you know, I'm not seeing any great howls 11 from the private sector about them being prohibited now, eff 12 -- essentially prohibited. I mean, it's an interesting 13 distinction that's been made at the Federal level, they are 14 henceforth prohibited from making donations to national 15 political parties, or to candidates for leadership 16 conventions; no more corporate contributions there. 17 But companies are permitted to make, as Mr. 18 Conacher pointed out, contributions of a maximum of one 19 thousand dollars ($1,000) to any particular party, divided up 20 cumulatively to local riding associations, candidates for 21 nomination and can -- candidates from official parties. 22 So, it's a very limited amount. General 23 Motors can contribute one thousand dollars ($1,000), all 24 across Canada to -- to those categories. 25 So, I -- I don't see any complaints about
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1 that. There -- where you'll see complaints, from the private 2 sector and from a good number of other people, is this -- is 3 the -- the particular terms that have been made in terms of 4 public financing. 5 Because what it does do, it really takes the 6 heat off of political parties to get out and do grassroots 7 fund raising and there's a lot of complaint about that, but, 8 that's a whole other matter. 9 MR. DAVID BUTT: Okay. We -- we discussed in 10 the -- our conference call, the notion of defensive 11 donations. Can you tell us a little bit about that? 12 MR. SEAN MOORE: Sure. Well the first thing I 13 should say, the other thing I mentioned in this conference 14 call was that, in the almost thirty (30) years that I've been 15 doing this, I can count on the number -- count the number of 16 times, on one (1) hand, how many of the thousands of 17 discussions I've been in about advocacy strategy, lobbying 18 strategy, how often the issue of political contributions came 19 up. 20 But, in almost every instance, there was 21 someone from the States in the meeting, from corporate head 22 office, or from the American Association who would say, we've 23 talked for two (2) hours about lobbying strategy here, why 24 isn't anybody saying anything about political donations? 25 And all the Canadians in the room look at them
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1 as if they're from Mars, as if that's a significant factor. 2 Well, they're coming from a culture in which the dollars in 3 lobbying -- the dollars in politics are so much more 4 important. 5 It -- it just doesn't come up very often. 6 However, where it does come up in discussions, is as I 7 mentioned, defensively. If everyone else in your industry or 8 everyone else in other professions, if you're the nurses 9 association and every other element of the health care -- 10 health caring industry is -- is making contributions to 11 political parties, we'd think well, we should too. 12 We can't -- we don't want to be the odd person 13 out. So that's what I meant by defensive. It's everyone 14 else is doing it, we should do it to, otherwise we look like 15 we're out of it. We're not really interested in the process. 16 So, that's what I meant by defensive. 17 MR. DAVID BUTT: Just in the very brief time 18 that we have left, I'd -- I'd like to touch on and ask you to 19 start, Mr. Conacher, one (1) issue that has -- has come up 20 for discussion in this Municipal Inquiry, is the role that 21 perhaps an Ethics Commissioner might play for a municipality. 22 And for that reason, it would be helpful for 23 us to -- to hear from you on -- on your views of -- of again, 24 just briefly because of our time, the -- the advantages and 25 disadvantages of the Ethics Commissioner model that we have
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1 Federally. 2 Would you like to start on that? 3 MR. DUFF CONACHER: Sure. 4 MR. DAVID BUTT: Just taking a couple of 5 minutes because of our time? 6 MR. DUFF CONACHER: Yes, indeed. And I'll 7 just bring up one (1) other area which relates to this 8 because it is the whole issue of -- of enforcement and -- and 9 the rules that would apply to all the various actors. 10 And -- and we haven't talked that much about 11 the ethics rules that would be in place for lobbyists and -- 12 and for public office holders, leaving public office and 13 becoming lobbyists and it's a very big problem, I believe, at 14 the Federal level and in most provinces, it's a re -- it's 15 known as the revolving door problem. 16 And it's something that should be looked at 17 very seriously, I think, in a good governance system, to 18 essentially prevent people from going into public service in 19 order to gain knowledge that then they leave and sell that 20 knowledge, which is knowledge of how to access and influence 21 the Government. 22 And the restriction at the Federal level, is 23 just Ministers have to sit out for two (2) years and other 24 senior public officials, for one (1) year and we think that 25 those time periods, the cooling off period, as it's known, is
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1 not anywhere near long enough. 2 Another general enforcement issue, is that in 3 all of these ethics rules, you should have an anti-avoidance 4 provision. In other words, that the spirit of the law or the 5 rules or the code, has to be adhered to. 6 And that is like as we have in our Federal 7 Income Tax Act and as there is in the Lobbyist Code Provision 8 that says, you can't violate the spirit of this, so that you 9 can't get off on a technical loophole that violates the 10 spirit of the legislation. 11 I raise that one (1), and I think it's 12 important to put in all of the rules you would put for public 13 servants, for the politicians and for the lobbyists because 14 it directly relates to the enforcement at the Federal level 15 and the infor -- the -- what we've -- have learned now, 16 through a process, is that the Federal Ethics Counsellor, 17 when enforcing the Lobbyist Code of Conduct, does not, at 18 all, give any regard to the provision that says the spirit of 19 the code and -- and the Lobbyist Registration Act law has to 20 be followed, not just the technical details of it. 21 And why is that? Well, again, as I mentioned 22 earlier, the -- the current system lacks independence from 23 those who are being watched over. The Ethics Counsellor has 24 no independence from the politicians that he is watching. 25 Reports in private so there's no transparency and has no
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1 investigative powers. 2 So when an allegation is made, cannot even 3 actually -- has no power to -- if it was an allegation about 4 a contract and money ending up with a lobbyist who had worked 5 for the politician in the past, which is a situation that has 6 arisen in the past few years, he can't look at bank accounts 7 to know where the money ended up. 8 Well, without that investigative power, how 9 can you determine whether the money came back as a kickback. 10 So you need an - a fully independent, fully empowered 11 watchdog to enforce all of these rules, with also the power 12 to levy penalties and another thing that the Ethics 13 Counsellor has no ability to do currently is to levy any 14 penalty. 15 The penalty -- penalizing is bounced back to 16 the senior public servant or the senior politicians who, 17 routinely, do no penalize anybody even when they are clearly 18 found guilty. 19 MR. DAVID BUTT: What sort of penalties would 20 you think would be appropriate for an ethics commissioner to 21 have at his or her disposal? 22 MR. DUFF CONACHER: Fines, essentially. 23 MR. DAVID BUTT: Thank you. Mr. Moore, 24 thoughts on the Federal ethics regime, again, with a view to 25 thinking of how some of the best practices or -- or things to
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1 avoid might assist us in the municipal context? 2 MR. SEAN MOORE: Well, I agree with Mr. 3 Conacher on a number of points. One, I think there's no 4 question that there is -- it's an important role for someone 5 to fill to be whatever the municipal equivalent is of an 6 officer of parliament, completely independent who can be in a 7 position to make rulings on these -- on these matters. 8 I think it's absolutely important and I think 9 the Federal Government would have saved itself a lot of 10 problems that had that in place, so, no -- no doubt about 11 that. 12 In terms of investigatory powers, I mean, I -- 13 I don't know. I -- I think if you're going to give someone a 14 job you've got to give them tools to do it, but, I -- I 15 really don't feel qualified to talk about what -- what the 16 ambit of -- of those things could be. 17 But I -- I do think it's important to have -- 18 to have a position that, to the extent it's possible in 19 today's constantly probing, cynical climate, to have someone 20 who's terms of reference, who's position, who's independence 21 is such that they -- they do not have to suffer accusations 22 of -- of being beholden. 23 I think that's every important and especially 24 in the area of ethics because it is -- it's so broad right 25 now the -- the notion of ethical concerns about things and to
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1 leave it just in the purview of the politicians I think is a 2 mistake, a) because those in power, and in positions of 3 executive power, are always going to be seen to be defensive 4 about that and doing the least. 5 But, on the other hand, those who are, sort 6 of, institutionalized opposition or critics of the system 7 have then, I think, a free rein and not -- and can tend to 8 get away with saying some pretty irresponsible things in the 9 absence of anyone who can be seen as being impartial and I 10 think there is no end of -- of nuance to treatment of issues 11 that we need. In fact, I think it's a very important thing 12 in order to deal with the pervasive, seemingly spreading, 13 cynicism about -- about government. 14 It's a sad commentary that we need something, 15 in addition to what we'd like to think of as a good workable 16 democracy, to make it work and to gain greater confidence but 17 I think the role of someone who is independent, impartial and 18 equipped to do the job is essential to that. 19 MR. DAVID BUTT: Thank you very much both of 20 you, and is often the case in very stimulating discussions 21 like this, there are a lot of points that I'm sure we could 22 cover, and perhaps should have, but we'd -- we'd certainly 23 welcome any comments you might have after you -- you've left, 24 if you wish to -- to send them to us, and we're very -- very 25 grateful for your -- your contribution today.
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1 MR. SEAN MOORE: Thank you. 2 MADAM COMMISSIONER: Thank you. Well, I'm 3 especially grateful to your contribution, Mr. Moore, and, Mr. 4 Conacher, because I'm the one who has to write the report. 5 So -- and -- and come up with recommendations, and this is an 6 area that doesn't always get a lot of airing in an 7 environment like this. 8 So, I appreciate both of you coming and taking 9 the time and being as frank as you have been, with the things 10 that work, the things that don't work, what I should look at, 11 what I shouldn't bother looking at, I really appreciate it a 12 lot from both of you, thank you very much. 13 MR. DUFF CONACHER: Thank you. 14 MR. SEAN MOORE: Thank you for the 15 opportunity. 16 MADAM COMMISSIONER: So, we'll be back at two 17 o'clock with Mr. Howard Wilson? 18 MR. DAVID BUTT: Yes. 19 MADAM COMMISSIONER: All right. 20 THE REGISTRAR: The Inquiry is now adjourned 21 for lunch until 2:00 p.m. 22 23 --- Upon recessing at 1:00 p.m. 24 --- Upon resuming at 2:01 p.m. 25
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1 THE REGISTRAR: The Inquiry will resume. 2 Please be seated. 3 MADAM COMMISSIONER: Good afternoon. 4 MR. DAVID BUTT: Afternoon Commissioner. This 5 afternoon we're privileged to have with us Mr. Howard Wilson. 6 And Mr. Wilson, of course, as we're all aware is the Ethics 7 Councillor for the Government of Canada and he has been a 8 career public servant, appointed by Prime Minister Chretien, 9 as the first Ethics Councillor to the Government of Canada, 10 in June of 1994. 11 And his responsibilities include administering 12 the Conflict of Interest code for public office holders. And 13 that covers cabinet, as well as, other senior members of the 14 executive branch. 15 He's also responsible for the administration 16 of the Lobbyist Registration Act and we heard a little bit 17 about that this morning and no doubt will hear some more 18 about it today. 19 Mr. Wilson actually developed and implemented 20 as of March 1997, the lobbyist's code of conduct. More 21 recently, Mr. Wilson, has been Chair of the organization for 22 Economic Cooperation and Development expert group, on 23 Conflict of Interest. 24 And was involved in the development of the 25 2003 OECD Guidelines for Managing of Conflict of Interest.
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1 So his interest and expertise has had an impact outside of -- 2 of Canada as well. And, prior to the appointment as Ethics 3 Counsellor, most of his career has been in the Canadian 4 Foreign Service in the area of trade policy. 5 So we're pleased to have Mr. Wilson with us 6 today. Thank you very much for coming and -- and I 7 understand that you're able to assist us initially with a bit 8 of an overview of the work that -- that you do; is that 9 correct? 10 MR. HOWARD WILSON: Yes. Yes, I'm delighted 11 to -- delighted to be here and if I can be helpful in terms 12 of the tasks that the -- that you have as Commissioner. 13 What I thought I would take is just a few 14 minutes to -- to situate the work of my office in terms of 15 dealing with Conflict of Interest and also lobbying. The two 16 (2) -- the two (2) are joined in -- in the one office. 17 The Conflict of Interest rules for -- for 18 public office holders -- public office holders are members of 19 the Cabinet, parliamentary secretaries, political staff who 20 are appointed to assist Ministers. They are not public 21 servants and then essentially all Governor in Council 22 appointees with some obvious exceptions such as -- such as 23 yourself as -- as a Federally appointed judge. 24 But it covers Deputy Ministers, Associate 25 Deputy Ministers. It covers the members of a number of
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1 tribunals such as the Immigration and Refugee Board, the 2 Canadian Radio -- CRTC. 3 There are about fifteen hundred (1,500) full- 4 time public office holders and certain parts of the -- of the 5 code also apply to part-time Governor in Council appointments 6 of which there are about two thousand (2,000). 7 The -- we use a code as opposed to a statute 8 and this is a -- a very important distinction, I think, in 9 terms of how we approach applying rules to -- to public 10 office holders in -- in terms of preventing conflicts. 11 And other jurisdictions, the provinces, in -- 12 in the main use statute and I have found, however, through my 13 own experience, that -- that having a code in which the 14 demands that are being placed, the ethical demands that are 15 being placed onto a public office holder go beyond the law. 16 And we say that there's a -- one of the 17 principles of the code talks in terms that -- that public 18 office holders have an obligation to perform their official 19 duties and arrange their private affairs in a manner that 20 will bear the closest public scrutiny. A manner that -- an 21 obligation that is not fully discharged by simply acting 22 within the law. 23 And I think that that is really a political 24 reality and so the code, in its current dimension, was 25 significantly revised in 1994. The revision was to put
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1 greater stress onto the principles. The idea that was not to 2 -- to create an instrument that was going to be able to deal 3 with every conceivable circumstance and -- and give direction 4 on that but rather to provide a framework which the ten (10) 5 principles do provide. 6 And then from that, there are certain 7 procedural issues and -- and certain rules, the procedural 8 questions being confidential disclosure and then the steps 9 taken to avoid -- avoid conflicts. 10 That's the -- but the essence here was to -- 11 was to devise an instrument that had sufficient flexibility 12 to be able to deal with situations that were -- were totally 13 unseen and I'll -- you have a lot of detailed questions for 14 me and I'll get into that detail, but I did want to -- just 15 to place that broader context on the -- on the table. 16 In so far as lobbying is concerned, I think 17 the -- the question of -- of lobbying, I find it, from my own 18 experience, that the appropriate rules in terms of disclosure 19 and registration are easier to analyse if -- if you've 20 already dealt with conflict of interest because many of the 21 -- of the issues, for example, that are placed in -- in the 22 reports that were prepared for the Commission, are ones 23 where, particularly on gifts and hospitality, the onus really 24 must lie with the public office holder, and to accuse a -- a 25 lobbyist of acting inappropriately if the gift is accepted,
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1 is to -- is to reverse I think the logical order of events. 2 So, I think that if we can understand what are 3 the appropriate standards to apply to a -- to a public office 4 holder and to a public servant, then the disciplines that 5 should apply to a lobbyist are -- are easier to understand. 6 Our principle with respect to lobbying is not 7 to talk in terms of bad or good lobbying, but rather to -- to 8 say that lobbying is a democratic right, governments are 9 very, very complicated, and there is a legitimate role to be 10 played by people being hired, to advance a particular point 11 of view that their client has. But the public does have a 12 right to know why -- who is doing this and for -- and for 13 what purposes. 14 One (1) of the things that -- in the -- in the 15 report says, you should also -- there should also be a 16 disclosure of who is being lobbied, which public office 17 holders are -- are going to be approached, or have been 18 approached by the lobbyists, and I have some -- some comments 19 on -- on that, because we do not do that, what we do is 20 insist on -- on that there be the purpose of lobbying, who 21 the client is, and which agencies and departments of 22 government are going to be lobbied. 23 And it has worked in -- just as a -- a general 24 comment, I think it has worked rather well. The -- the 25 genesis of the lobbying legislation in Ottawa began in the
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1 1980s, when there were allegations being made that certain 2 individuals who were very close to the government had special 3 connections, and were in a position to arrange a meeting. 4 It was a -- it was a -- a political crisis of 5 -- of some importance, and that resulted in 1988/89 with the 6 first Lobbyist Registration Act, which was a very imperfect 7 instrument, it was -- it was very, very difficult to 8 understand, and your witness earlier today, Sean Moore, 9 actually created a -- a journal that was circulated, the 10 Lobby Monitor, that in effect interpreted what the registry 11 was trying to say about -- about lobbying activity, and 12 performed thereby a -- a rather useful service. 13 But as a result of Parliamentary review, the 14 Act was changed significantly in the mid 80s and the 15 information then was much easier to understand, and we had 16 the availability of the Internet. 17 MADAM COMMISSIONER: In the mid '80s it was 18 changed? 19 MR. HOWARD WILSON: Yes. And there -- did I 20 say 80 -- yeah, the mid -- the -- 21 MADAM COMMISSIONER: Because I thought -- I 22 thought you said it first came out in 1988 or '89. 23 MR. HOWARD WILSON: '88, the mid -- mid '90s. 24 MADAM COMMISSIONER: Okay, thank you, yes. 25 MR. HOWARD WILSON: So, excuse me.
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1 MADAM COMMISSIONER: No problem. 2 MR. HOWARD WILSON: And this -- this was a 3 significantly changed piece of legislation. It was much more 4 broadly crafted, it covered all three (3) categories of 5 lobbyists and required information that -- that would be 6 useful to the public in understanding, as I say, the basic 7 questions as to who's -- who's been hired and what is it they 8 are attempting to -- to influence. 9 The legislation stated that there had to be a 10 review after five (5) years, and this took place with a 11 Parliamentary Committee, and has resulted in a -- a new piece 12 of legislation, which has not yet been -- it's been passed, 13 but it has not yet been proclaimed, the -- the regulations 14 are -- are still in the -- in the comment phase. 15 It's made some changes, but largely the 16 structure remains the same, we had a very serious legal issue 17 as to whether the Act was enforceable, and that has now been 18 -- has been dealt with, and I can go into any of the details. 19 I think that the nature of the debate 20 politically in Ottawa, on lobbying, has -- has greatly 21 changed, because of a transparency that is now available to 22 -- to the media, to opposition parties, to the public, more 23 broadly. 24 And the -- the Registry being on the Internet, 25 the Registry has a -- a device that or a part that has the
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1 most recent thirty (30) day registrations and it's a rolling 2 one (1), automatic. 3 So that means that the people who have an 4 interest on this, can -- can bookmark that particular -- that 5 particular part of our site and then find out that someone 6 has just registered -- competitors do this, but, also Members 7 of Parliament and government officials and very much the 8 media. 9 And the result is, that there's regular 10 reporting that somebody has been hired and I think it has 11 demystified a little bit of the concern that lies at the 12 heart of most lobbying debates which is, that something is 13 going on behind closed doors and -- and we think this is just 14 against the public interest; it's that general context that 15 is important. So I think those are the opening comments that 16 I thought I'd make. 17 MR. DAVID BUTT: Just to follow up a little 18 bit on -- on some of those areas, in dealing first with the 19 conflict of interest area, is there sort of an understanding 20 or a definition that you work with, in terms of a conflict of 21 interest? 22 MR. HOWARD WILSON: We do not have a 23 definition of Conflict of Interest. A number of Provincial 24 jurisdictions do and at least -- most deal -- most of the 25 provinces deal with actual conflict, real conflict.
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1 One (1) province, British Columbia, also has 2 the appearance or apparent conflict. And -- but, Ontario 3 uses a definition, British Columbia uses a definition, some 4 of the other provinces do and we very consciously do not and 5 let me explain why. 6 The code -- the Conflict of Interest code, is 7 described as a conflict of interest and post employment code 8 for public office holders, but, in fact, it as my title 9 suggests, deals with a wider range of issues and the 10 principles deal with more than just a debate as to whether a 11 person is in a conflict of interest. 12 And some of the investigations that I have 13 been -- that I have carried out have, in fact, have a broader 14 terms of reference, that is, was the actions of this 15 individual in conformity with the obligations of the conflict 16 of interest code. 17 So, rather than using the question of and 18 having a debate about a definition, what we have are a set of 19 principles, and then of course, a set of rules and so you can 20 -- you can examine this one -- at several levels. One (1) is 21 did they comply with the rules that were -- that they were 22 obligated to -- to adhere to? Well, that's a relatively 23 straightforward question. 24 But, you get into -- into other issues, that 25 was the actions appropriate? And that in itself, I have
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1 found that using the principles as a basis for -- for 2 determination, has made it much more useful as an instrument 3 to -- to make these -- these judgments. 4 So, I'm not sure whether if -- if a question 5 is placed in statute to -- that it would be more readily 6 assumed that you should have a definition, but, if you're 7 dealing with a code which says that merely acting within the 8 law may not be sufficient, then a definition is -- becomes a 9 point of perhaps unnecessary debate. 10 MR. DAVID BUTT: And again I hear this as 11 being consistent, correct me if I'm wrong with your earlier 12 theme that there's a deliberate decision to -- to found your 13 activities on the basis of a code rather than a statute. 14 So as opposed to statutory approach, defining 15 discreet areas of conduct that are prohibited or permitted in 16 certain circumstances, the code starts from -- from certain 17 foundational principles and you reason forward from there, 18 with some rules to supplement is that -- 19 MR. HOWARD WILSON: That's correct. 20 MR. DAVID BUTT: Is that fair? And can you 21 help us, what are the guiding principles that you see as key 22 to the effective operation of a code in the context of the 23 senior levels of public office. 24 MR. HOWARD WILSON: Well, the ones that I most 25 -- there are ten (10), but, the ones that I have found are
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1 critical. The first one (1), which says that 2 "Public office holders shall act with 3 honesty and uphold the highest ethical 4 standards so that public confidence and 5 trust in the integrity, objectivity and 6 impartiality of government are preserved 7 and enhanced." 8 So that, that sets a very important standard. 9 The -- the next I made reference to is to the question of 10 public scrutiny, that 11 "Public office holders have an obligation 12 to perform their official duties and 13 arrange their private affairs in a manner 14 that will bear the closest public scrutiny 15 and obligation that is not fully discharged 16 by simply acting within the law." 17 And then the last one that I would highlight 18 is the matter of public interest and that is number 5. 19 "On appointment to office and thereafter, 20 public office holders shall arrange their 21 private affairs in a manner that will 22 prevent real, potential or apparent 23 conflicts of interest from arising, but if 24 such a conflict does arise between the 25 private interests of a public office holder
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1 and the official duties and 2 responsibilities of that public office 3 holder, the conflict shall be resolved in 4 favour of the public interest." 5 And those are the ones that I have invariably 6 cited, whether it's in my annual reports or as a point of 7 departure for any investigation that I'm carrying out. 8 MR. DAVID BUTT: And could I talk a little 9 bit about the structure of the office. Now, you've spoken, 10 just in your last answer, about investigations and you've 11 spoken about annual reports, first of all, just at a 12 practical level, how do you spend your time? What -- what 13 roles do you fulfil? There's obviously an investigative one; 14 are there others? 15 MR. HOWARD WILSON: I think the -- the most 16 important role is the advisory role and -- and then that's 17 reflected in the name that was -- that was chosen as being an 18 Ethics Counsellor as opposed to an Ethics Commissioner. 19 The view being that -- and then this is -- 20 this is true of my office, that the -- we view the operations 21 of the code to be effective have to be proactive. There -- 22 there are several -- there are two (2) schools of thought 23 that you -- that often come up and that is, do you establish 24 rules and then expect the public office holder to take 25 personal responsibility for living up to them and then have
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1 an Ethics Commissioner who is a -- who is there to pronounce 2 that the steps taken were insufficient? 3 And in some part -- in some US jurisdictions 4 this is almost a, sort of, a gotcha kind of -- of an 5 approach; it's a -- basically, it's not very friendly. 6 The other approach is to say that what we 7 really want to do is to establish what the principles are and 8 what the rules are but we want to take the steps in advance 9 so that the public office holder is able to -- to get about 10 their public responsibilities without constantly being 11 worried as to whether or not what they're proposing to do is 12 appropriate or not. 13 And this is very important in terms of private 14 -- private interests such as holdings on the -- on the stock 15 exchange, holdings in a private company, for example. And so 16 what we do and we give ourselves a hundred and twenty (120) 17 days to do this, is to -- is to have a confidential 18 disclosure of all of the assets, liabilities and outside 19 activities of the public office holder. 20 Spouses are only covered with respect to the 21 spouses of Ministers and Parliamentary Secretaries and -- and 22 if there's a -- if there's an interest in that, I'm quite 23 happy to speak to it. 24 From the confidential disclosure, we then sit 25 down with people in my office who will -- will sit down then
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1 with -- with the individual and then go through these and -- 2 and determine which outside activities have to be resigned, 3 which assets have to be divested, either through an arm's 4 length sale or by the formation of a -- of a trust 5 arrangement and there are very special arrangements in place 6 for private companies where a blind trust is -- is not 7 recommended. 8 And the result is that within the hundred and 9 twenty (120) days we're able to say that the person is now in 10 compliance, certain details are put on our website, there are 11 certain declarations that are required, but my experience has 12 been that if you've -- if you've put away the interests that 13 are going to be particularly problematic, then the question 14 should not arise in future that there is a problem. 15 We will have an annual review to -- to ensure 16 that the person remains in compliance and it's this proactive 17 approach that, I think, gives particular strength so that 18 most of the time, when some allegation is made, that -- and 19 this is particularly the sensitivity of the Ministers, just 20 being much more public figures, is that more often than not I 21 already know the answer and in other words it's been dealt 22 with. 23 And that I think reinforces an important goal 24 of any Conflict of Interest regime, which is, is to 25 demonstrate to the public that they should have trust in the
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1 integrity of -- of these officials. 2 MR. DAVID BUTT: And so just to flush out a 3 couple of practical details, again keeping in mind that -- 4 that the thinking is -- is -- the idea is it might be 5 translatable to the Municipal context. 6 This confidential financial disclosure and -- 7 and assessment of potential for any conflicts is -- is 8 mandatory for every public officer holder, as defined within 9 a hundred and twenty (120) days of their taking office; is 10 that right? 11 MR. HOWARD WILSON: The confidential 12 disclosure is within sixty (60) days and then we have a 13 further sixty (60) to take whatever steps are -- are 14 necessary to bring them into compliance. 15 MR. DAVID BUTT: Okay. 16 MR. HOWARD WILSON: But it's not 17 discretionary. 18 MR. DAVID BUTT: All right, and so then every 19 public office holder, ideally will within a hundred and 20 twenty (120) days of their appointment be on your website -- 21 MR. HOWARD WILSON: That's right. 22 MR. DAVID BUTT: -- with -- with a notation of 23 being in compliance? 24 MR. HOWARD WILSON: That is correct. 25 MR. DAVID BUTT: And in terms of the annual
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1 reviews, are those annual reviews then also made public as 2 well, or is it simply assumed that -- 3 MR. HOWARD WILSON: If there are any changes, 4 then they would be reflected possibly in a notation that 5 there's now a blind trust, or that the person has taken up 6 appointment as a -- as a director of some philanthropic 7 organization, so that there -- there may have been gifts, and 8 requiring disclosure and so that -- so that the assumption, 9 however, is if there is no change, the person remains in -- 10 in compliance. 11 MR. DAVID BUTT: And again, thinking about 12 eventual or potential applicability to a Municipal context, a 13 -- a decision was made to define public office holders at a 14 -- at a certain level, which can I accurately capture it as 15 -- as senior levels of -- of management? Would -- would that 16 be fair, whether they be elected or -- or non-elected 17 officials? 18 MR. HOWARD WILSON: That -- that's correct, 19 the -- there is a -- a code now called, The Values and Ethics 20 Code for -- for the public service. And at one (1) time it 21 was combined into the -- the same code, and that was back in 22 the mid '80s there were Category A public office holders and 23 Category B, Category B were public servants and Category A 24 were the more senior members. 25 And -- and the conditions that were applied to
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1 -- to the more senior levels were -- were more onerous, and 2 -- and that continues to -- to be the -- to be the case, 3 where on disclosure requirements, a public servant is -- is 4 obligated to make a disclosure of an interest, which may 5 create a conflict of interest, but there is not a -- a system 6 to say that this is not discretionary you just -- you are 7 going to have to tell us precisely all of your -- all of your 8 interests, on a -- on a confidential basis. 9 So -- and the -- for the more senior members 10 of Government, I think that -- that this -- this is 11 appropriate. 12 MR. DAVID BUTT: I'd just like to add -- ask a 13 question around that sort of decision to draw the distinction 14 between the -- the levels and again, I'm thinking potentially 15 to the Municipal context, what -- is it a practicality of 16 administering large numbers of these mandatory disclosure 17 exercises that -- that influences the thinking, or is there a 18 conceptual distinction between the -- the vulnerability of 19 somebody above the line, and somebody below the line, or is 20 it -- 21 MR. HOWARD WILSON: Well, I -- 22 MR. DAVID BUTT: -- or is it something else? 23 MR. HOWARD WILSON: -- well, I think -- I'm 24 not certain that we could not have a -- a good debate as to 25 whether the line that has been established at the Federal
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1 level is -- is low enough. I -- I think that clearly when 2 you're -- when you're talking of support staff, that kind of 3 disclosure system would be inappropriate, again, because of 4 the decision making capacity of the individual. 5 But, when you get into the executive category 6 and an Assistant Deputy Minister, for example, is right below 7 an Associate Deputy or a Deputy and a case can be argued that 8 says, that maybe for those more senior members of the Public 9 Service that disclosure should be -- should be an obligation. 10 So that again the question of what constitutes a conflict is 11 very different in the minds of different people. 12 And my office does become engaged from time to 13 time, in talking with the government departments. And if 14 there are to be blind trusts, we're the ones who set this up. 15 And I have seen personal experience where somebody who had a 16 5 percent interest in a Mac's Milk franchise, every year 17 would make this -- make this disclosure. 18 And no conceivable connection between a Mac's 19 Milk franchise and any government -- Federal government 20 activity; there would possibly be at the municipal level, 21 but, then another individual of the same rank, and carrying 22 on very, very important duties, had investments in a wide 23 variety of companies and didn't see that these ever created a 24 problem because he was a respectable and honourable person. 25 And one hopes that everyone in public life is
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1 of that nature, but, that's not the point. The point is that 2 the public must have confidence that you are not using your 3 knowledge and your decision making capacity to further a 4 private interest. 5 MR. DAVID BUTT: And that as I hear it, would 6 be an important rationale behind the mandatory nature of the 7 disclosure. This is -- this is a public information aim or 8 objective that's being primarily fulfilled, satisfy the 9 public. It's not to be selectively doled out to those deemed 10 needing of additional controls? 11 MR. HOWARD WILSON: Well, what we're -- what 12 we're actually saying is that the code is proactive and we're 13 not making suggestions to you as to what you should do. 14 We're telling you this is what has to be done. 15 MR. DAVID BUTT: Now, in -- again in terms of 16 return to this notion of the day to day role, certainly those 17 mandatory disclosures are a critical part and in terms of the 18 proactive duties, is there and ad hoc advice role that is 19 played beyond these more formal assessments of conflict? 20 MR. HOWARD WILSON: Yes, and what that comes 21 back to again the advisory the importance of the advisory 22 function of the office and this is particularly the case when 23 a person may have received an invitation to attend -- to 24 attend a sporting event, to go to a concert wondering whether 25 or not, the acceptance of that kind of hospitality is
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1 acceptable. 2 There may be request to be a patron of a fund 3 raising activity for some -- for some charity. There are a 4 wide range of questions that fall within the scope of the 5 code upon which people, particularly Ministers and Minister's 6 offices regularly seek advice. 7 I think on an average day we would probably 8 get anywhere from ten (10) or so communications from a 9 Minister's offices asking about this or that. 10 The -- and we welcome this. And so a lot -- 11 there are other questions that come up that we had never 12 previously considered and so, with the principles however, 13 there is a basis upon which we can -- we can in fact deal 14 with this. 15 The question of fund raising for example. 16 When you're pursuing as I had to do last year, we had a 17 leadership campaign for the Liberal Party and it wasn't 18 formally underway, but, there's an awful lot of activity was 19 taking place and I made recommendations as to how could a 20 Minister conduct him or herself whilst they were out fund 21 raising and at the same time that they were playing a 22 ministerial role. 23 Was there not inherently a conflict situation 24 if they knew that somebody had given them twenty five 25 thousand (25,000) or more dollars, whilst they sat, while
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1 they had this public responsibility. 2 And my answer to it was, was that as long as 3 it was collected into a legitimate and strongly enforced 4 blind trust, in other words, that there was no knowledge that 5 the candidate had, that this person had made a -- made a 6 donation then I thought it was -- then I thought it was 7 manageable. 8 But the -- the question of fundraising, I 9 determined, was a private interest in that seeking the 10 leadership of the Liberal Party was not a public 11 responsibility. It was a -- it was a personal, private 12 interest and so that the code allowed me then to say, well, 13 how then do you balance the public and -- and the private? 14 And the answer was that a blind trust would 15 work and then at the end of the process there would be full 16 disclosure, but, at least all during the time that the 17 individual was continuing to play a role as a -- as a 18 Minister, there would not be a need to recuse because the 19 Minister would simply not have had knowledge. 20 If the Minister did have knowledge, well, then 21 there would be a need for a recusal system, but it's -- these 22 were the -- the kinds of -- kinds of issues that regularly 23 come into the office. 24 Some of them result in a publication of a 25 guideline but more commonly they -- they result in just
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1 advice being given to an individual to say, this is how you 2 should play it. 3 MR. DAVID BUTT: Could I just follow up then 4 on that -- that notion of guidelines, from what you've 5 explained I take it there would be a potentially, ultimately, 6 a growing body of, I wouldn't call it jurisprudence, but a 7 growing body of guidelines that have emanated from advice 8 given in past cases so that there could be some consistency 9 going ahead; is that right? 10 MR. HOWARD WILSON: That -- that is correct. 11 MR. DAVID BUTT: And would it be the case 12 that if someone comes to you confidentially for advice you 13 would, taking steps to maintain confidentiality, remove 14 personal identifiers, would you post the -- the issue and the 15 advice given so that others could see that growing body or 16 would you wait until it would be appropriate to capture a 17 more general area of activity in a guideline? 18 MR. HOWARD WILSON: Well, I -- I think it's a 19 -- probably a bit of everything that you mentioned. I have 20 -- questions have been raised formally with me. The Prime 21 Minister may have asked or cabinet may have asked for advice. 22 This happened very early after my appointment 23 as Ethics Counsellor when a minister was known to have made a 24 representation to a quasi-judicial tribunal on behalf of a 25 constituent and the question was, was this a -- was this
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1 appropriate and I was asked then to prepare a report for -- 2 for the cabinet. 3 Came to the conclusion that although dealing 4 on behalf of constituents is a very important responsibility 5 for a Member of Parliament, nonetheless, the individual was a 6 Minister and -- and I concluded that it was not appropriate 7 for a Minister or a Minister's office, whether it's a 8 constituency or Ministerial level, to make representations to 9 a quasi-judicial tribunal on behalf of a constituent. 10 My point was that we don't have to issue 11 broadcasting licenses through the CRTC. We don't have to 12 issue immigration decisions through the Immigration and 13 Refugee Board but Parliament had decided that that, indeed, 14 was how it was going to be conducted. 15 And, having said that, then there was need for 16 -- for Ministers to -- to stand back. And that has been -- 17 been essentially in place since -- since '94 and it's -- it's 18 -- it's one of the big changes, quite frankly, that happens 19 to a MP who has become a minister for the first time because, 20 depending on where they -- they sit, these are -- these are 21 very, very important to their constituents. 22 That was -- that was one example. There was a 23 question that had been raised with me formally during the 24 2000 election when it became known that Prime Minister 25 Chretien had made some telephone calls to the head of a
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1 business development bank on behalf of a constituent. 2 And I was asked formally during the election 3 campaign, by Stockwell Day as leader of the -- of the 4 Alliance, of Reform I guess it was, and Joe Clark as leader 5 of the Conservatives, whether or not the Prime Minister had 6 broken any rules. 7 I was able to determine and reported that, no, 8 there were no rules respecting that, but I went on to add in 9 my letter that there had been, as a result of my 10 investigation, a clear change in how the Government of Canada 11 wanted to operate a Crown Corporation, is that the -- the 12 governance system was -- was changing and I was ex -- I 13 expected, in the coming weeks, to address that issue and -- 14 and make some recommendations. The recommendations that I 15 did make in 2001, and they were put in place in 2002, and are 16 -- and continue in place. 17 And there's been a -- there's been a variety 18 of these; that's one (1) mechanism, The other is I'm -- I 19 was empowered in 2002 to do an annual report. So, since I'd 20 been around since '94, the first one (1) I actually tried to 21 go back to -- to the beginnings, and -- and I used that as a 22 vehicle for again, generalizing advice that we commonly give. 23 And my most recent annual report, which is December 10, which 24 I sent to Prime Minister Chretien, carries that further. 25 So, there is a -- there is a -- and all of
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1 this is available on the website, I think this is terribly 2 important, so that there is -- I agree with you, it's not 3 jurisprudence, but at least there is a body of guidance that 4 people are able to draw upon and -- and I -- I suspect that 5 that will continue even with the change of -- of the -- the 6 formal structure of -- of the office. 7 MR. DAVID BUTT: And in the context of 8 auditors, there -- there is of course a well established 9 history and -- and I suppose one (1) could readily say, 10 demonstrated utility of an annual report, and the discussion 11 and the tension that -- that it generates around the 12 financial responsibility. 13 Do you see the same benefits and potential for 14 an annual report in -- in an ethics context? 15 MR. HOWARD WILSON: Yes, I do, because I think 16 that the things that you have to address with an individual, 17 will remain confidential, and must remain confidential. And 18 yet the generality of it may be of broader -- a broader 19 interest. 20 And I had been required to do an annual report 21 for the Lobbyist Code of Conduct, and there have been a few 22 issues upon which I have given advice to an individual 23 lobbyist, that subsequently I felt were of general 24 application, and -- and should be -- should be made in a -- 25 in a more public way, and I could talk about, if you wish,
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1 what some of that -- that was. 2 MR. DAVID BUTT: Yes, we'd like to come to the 3 lobbyist discussion. 4 MR. HOWARD WILSON: Yeah, but -- but again, it 5 was that experience that I had in using the annual report for 6 the Lobbyist Code of Conduct, which I'm required to do by 7 Statute, that led me to -- to say that maybe we should be 8 doing the same thing on the -- on the ethics side. 9 MR. DAVID BUTT: Okay. And now -- now getting 10 back a little bit to the function we have the -- the formal 11 disclosure mechanisms, the confidential requests for advice, 12 and then I -- I heard you identify a third one (1), a request 13 about another person, the example you gave being during the 14 election campaign, opposition parties making a request to you 15 vis-a-vis the conduct of the -- of the Prime Minister. 16 Is that a -- a significant part of your -- 17 your day to day roles of your office, addressing requests 18 that people make about other people? 19 MR. HOWARD WILSON: Well, I -- I do spend a 20 fair amount of my time answering media questions, 21 particularly that may have been generated by comments made by 22 -- by -- by politicians. 23 The -- and I think that this again is one (1) 24 of the important responsibilities that if you have dealt with 25 the individual, and you have made recommendations and the --
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1 and the individual has taken those recommendations, then I 2 think that you're honour bound to in fact explain the 3 context. 4 And a lot of issues are much more complex than 5 they are portrayed in the media. And -- and often steps 6 hadn't been taken, so I've considered that I -- I personally 7 return all the media calls that I -- that I get, and try at 8 least to explain why this individual had to take this 9 particular step and why I considered that to have dealt with 10 the measure. 11 There may be and often is disagreement, as to 12 whether the recommendations that I had made were adequate, 13 that people will say, well no, they should have gone further, 14 and these are parts of normal -- normal debate. 15 And -- but it is an important part. Just -- 16 ties with in a bit, the investigatory function of the office. 17 The office evolved significantly over the -- over that period 18 from its formation in 1994. 19 At the beginning, it was clearly to administer 20 the Conflict of Interest code and the Prime Minister 21 announced that I would be available to him to investigate 22 allegations that might be made against one (1) of his 23 Ministers. 24 So, that was clearly a question was that I 25 would expect then to get a call from the Prime Minister or
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1 maybe the Minister involved. 2 And so -- but about two (2) or three (3) years 3 later, I spoke to the Prime Minister and suggested that if 4 the allegation being made, either in Parliament or in the 5 media was against -- was to claim that the Minister was not 6 in compliance with a specific obligation in the code, that I 7 should not have to wait for the Prime Minister to say, we'll 8 do something about this and he agreed. 9 And so that when those allegations were made 10 and they were specifically related to an obligation within 11 the code, then I had the right to investigate that and make a 12 report to both the Minister and the Prime Minister; those 13 would not necessarily become public, most of them were, but, 14 not necessarily. 15 Then in the year 2002, there was a significant 16 change where it said that any Parliamentarian who made a 17 complaint against a Minister, and this was not restricted to 18 the precision of the code, it could be on other issues, that 19 they were just behaving unethically, then I had the 20 responsibility to investigate that and to make a report. 21 And that that report would be issued 22 simultaneously to the complaining Parliamentarian to the 23 Minister against whom the complaint had been addressed and to 24 the Prime Minister, deliver those all at the same time and 25 then about two (2) hours later, put it up on my website and
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1 so that there -- this is now and these powers will continue 2 with the new proposed Ethics Commissioner. 3 I think this is quite important. But, there 4 was a continuous evolution as time went on and as we gained 5 experience in where were the appropriate limits. At the end 6 of the day, however, what steps should be taken with respect 7 to a found accusation against a Minister, must lie, in my 8 judgment, with the Prime Minister. 9 We're not dealing with -- we're not dealing 10 with criminal activity in these areas here, it's the Prime 11 Minister who is accountable for Parliament for the 12 performance of the Government. 13 And it's the Prime Minister who must carry 14 responsibility for taking what he might consider to be the 15 appropriate disciplinary steps. 16 MR. DAVID BUTT: Have we covered then, in 17 broad strokes, at least, the different functions that the 18 office performs, the disclosure analysis, the advice giving 19 and then the investigation? 20 MR. HOWARD WILSON: Yes. 21 MR. DAVID BUTT: And I'd just like to comment 22 a little bit on the complaint and investigation, or ask some 23 questions around the complaint and investigation area, if I 24 could for a minute. 25 The first one being, I think it's
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1 uncontroversial that any Ethics Councillors, Commissioner, 2 performing a similar role, whether at the Federal, 3 Provincial, or Municipal level is going to be operating in 4 the middle of a political environment that sometimes is white 5 hot. 6 Do you discern a use of your office for 7 political ends, in terms of complaints that come forward and 8 if that's the case, how does that factor into how you deal 9 with the complaint? 10 MR. HOWARD WILSON: Well, I think it's almost 11 certain that that will be the political climate. The absence 12 of which, if it's a day in which there is nothing happening, 13 then it's -- then the atmosphere is not white hot, but, often 14 it does become and it can turn on issues such as, is it 15 appropriate to get onto a private jet, is it appropriate to 16 play golf with Tiger Woods? 17 There's a very, very wide range of such 18 issues. And I think that what is -- what is important has 19 been to, as I say, be open, at least to the media, and but 20 also if there's a -- if there's going to be a requirement for 21 -- for a report, well, then there's not much that can be said 22 at that point in time until -- until the report is finished. 23 And the -- I don't have any formal 24 investigatory powers, but I have never been disappointed in 25 the degree of cooperation that I have received, not just from
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1 public office holders but also from -- from others who may 2 have been involved on -- on some aspect of whatever is he -- 3 whatever is the issue. 4 But I think that the reality is that it's 5 going to be in a highly charged political atmosphere. I 6 think, however, the ability to be able to say, it is now 7 being looked at and being looked at in depth and objectively, 8 helps the political process because, otherwise, question 9 period in the House of Commons is not the mechanism for 10 dealing with these kinds of issues. 11 It has a different purpose, but it's not going 12 to result in their resolution. I'm not being critical of 13 question period, but it was not designed for that purpose. 14 Also, it happens to be a fact in public life 15 that the individual against whom the accusation is being made 16 is often in the most difficult of circumstances in terms of 17 providing an effective defence of their actions. 18 And this may be an unfortunate matter of the 19 times we live in but I think that if there is a capacity to 20 be able to deal in depth and then lay out in the -- before 21 the public then I think that it -- it is to the benefit of 22 the individual and it is of benefit to -- to the public 23 institution in question and there is no difference, in my 24 view, between the Federal, Provincial and Municipal levels on 25 -- on that question.
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1 MADAM COMMISSIONER: On that, if I might, Mr. 2 Butt, Mr. Wilson, just a few minutes ago you indicated that 3 it should lie with the Prime Minister who is accountable and 4 it's for him to determine what the appropriate disciplinary 5 steps should be, I wonder if you could turn your mind to what 6 the situation would be in a Municipal environment where there 7 isn't the same party system, there isn't the Prime Minister, 8 the cabinet ministers, parliamentary secretaries? 9 And so from a disciplinary approach, it -- the 10 system that you're head of doesn't lend itself in the same 11 way to what one would do at the Municipal level and I'm 12 wondering if you've turned your mind to that? 13 And I don't want to put you on the spot, if 14 you haven't turned your mind to it, that's fine and if you 15 have and you think you could provide me with some assistance, 16 I'd be grateful. 17 MR. HOWARD WILSON: Yes, I have been thinking 18 about that since I was asked to -- if I would be willing to 19 come down here and talk about it. It's a matter of 20 continuing debate in Ottawa, just with respect to -- to my 21 role and the question that -- that it's somehow wrong for the 22 Prime Minister to be involved in these matters. 23 Let me just dispose of the final comment on 24 the -- on the Federal system and what I apply at the level of 25 the provinces is that we are in a parliamentary democracy and
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1 we have elections and the Prime Minister is -- or a Premier 2 of a province is the person who has -- has the confidence of 3 the -- of the Chamber. 4 And I am greatly troubled by any notion that 5 the judgment of -- of what should be done by a non-elected 6 official. I think that when you're dealing with judicial 7 matters then it's very clear because you have such questions 8 as -- as the law, whether it's administrative law or whether 9 it's criminal law and -- and -- and -- and the well-respected 10 separation between the judicial power and the executive power 11 or legislative power. 12 But I can see at the Municipal level, that 13 this is a -- that this is a -- can be a -- a difficult 14 question. 15 I guess the issue would be, can Council, in 16 its collectivity, play a decision role. In other words, if 17 the Mayor is being accused of -- of being in a conflict in 18 terms of a -- of a -- the code that may have been established 19 and the -- and the Ethics Commissioner, who had been 20 appointed, carries out a report, and says, yes, indeed in my 21 judgment. 22 Then it seems to me that -- that there would 23 have to be some capacity for -- for the Council to be able to 24 collectively deal with this, but it is a different situation, 25 and -- but I'm not -- if a -- if a person has the power to
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1 say, yes, it -- it has -- it has happened, then the question 2 of a remedy - unless that is very clearly set out in the Code 3 itself - I don't know how the Commissioner would -- would 4 adequately address it. 5 I think it's a -- I think it's a critical 6 question, and I'm -- I'm -- I don't think my answer is -- is 7 necessarily all that helpful, but I think it's easier for -- 8 for staff, because you do have a senior person at the end, 9 who then will deal with -- with the staff of -- of the -- of 10 the City. 11 But if it's an allegation against a 12 Councillor, and the person is not acting -- is not acting on 13 a criminal fashion, is acting informally with the Municipal 14 Act, then I'm -- I'm not sure, but there is always a 15 resolution, the public will -- will in fact come to a -- come 16 to a conclusion at the time of the next election. 17 MR. DAVID BUTT: And I guess this -- that 18 notion that you've just mentioned underscores much of the 19 discussion I -- I think that can come up in this area around 20 penalties, and -- and sanctions, and that the question being, 21 does one (1) adopt more of a judicial one (1), where an 22 individual Commissioner does have identified penalties that 23 he or she can impose, or does one adopt more of a political 24 model, where the sanction lies in disclosure of the conduct 25 and the political fallout that may or may not follow from
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1 that. 2 I take it from your comments that you lean 3 somewhat towards the -- the political spectrum of -- of 4 sanctions -- 5 MR. HOWARD WILSON: Yes, yes. 6 MR. DAVID BUTT: -- as opposed to the 7 judicial? 8 MR. HOWARD WILSON: I think so. And -- and 9 for -- and for more than a single reason. I -- I think that 10 one (1) of the purposes of -- of having the Code, one of the 11 purposes of having an Ethics Commissioner is -- is to be able 12 to deal in some sensible fashion, ideally in advance of -- of 13 what are the appropriate standards for gifts and -- and 14 hospitality, for example. What are the appropriate sort of 15 services that you can provide to friends and family and these 16 sorts of things. 17 What you're trying to do with the Code, and 18 with the process it seems to me, is to avoid problems in 19 advance, but also to provide a system, and this comes back to 20 the -- my advisory role, which I think is critical. 21 And that quite frankly, a more -- a more 22 formal system, a more judicial system, I don't know is 23 necessarily in the broad interests of -- of the Municipality, 24 only because it -- it tends to formalize a structure in -- in 25 such a way that the public office holder is unlikely then to
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1 turn and get the advice that he or she should be acting upon 2 and -- and, yes, if somebody is at grievous fault, I think 3 the political system will sort it out. 4 MR. DAVID BUTT: And I guess along that line, 5 it might be said that it's difficult to be both confidant and 6 prosecutor of the same individual 7 MR. HOWARD WILSON: I think that's right. 8 MR. DAVID BUTT: And your function would be 9 much more towards the -- the confidant end. Just on the 10 theme, you've mentioned a little bit earlier that -- about 11 the importance of having a thorough and objective 12 investigation, and one (1) of the reasons being that -- that 13 an individual may be unable, for a variety of reasons, to 14 adequately defend themselves. 15 Do you see it as part of your office's 16 function to -- to perform a defence role, when someone has 17 been targeted with a -- a complaint? 18 MR. HOWARD WILSON: I see my -- the 19 responsibility of my office, if we're taking this up, is to 20 -- is to put into the public domain, the facts of the 21 situation. 22 And then calmly draw a conclusion in terms of 23 was it consistent with the code, or not? That could be 24 styled as defence, but, I think what I'm trying to do is just 25 to -- is to deal with the substance of the complaint.
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1 MR. DAVID BUTT: Now, if I could ask a 2 question just on a little more detailed functioning of your 3 regime. 4 You mentioned that some, I believe, 2002 5 amendments provided that a parliamentarian could made a 6 complaint and then the report would be things would be 7 investigated and the report would be delivered simultaneously 8 to a number of stakeholders. 9 And then very shortly afterwards made public. 10 Given that your office applies to public office holders, 11 which are broader than simply parliamentarians, it also 12 includes senior civil servants, can you offer us any thoughts 13 on the desirability of providing all public office holders 14 with that ability to make a complaint? 15 And the reason I ask that is because there's a 16 potentially significant new category that might be included 17 whereby a senior civil servant could make a complaint against 18 a politician or vice versa. 19 Do you have any thoughts on -- and again I'm 20 thinking in terms of municipal context, where there would be 21 Councillors and senior staff? 22 MR. HOWARD WILSON: The way -- the decision of 23 2002 was to -- was to make it clearer that if there was a 24 complaint, it would have to be acted upon and it would be 25 acted upon in a way in which the results would be public.
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1 And that currently would only apply to 2 Ministers and Parliamentary Secretaries. However, what the 3 office has done, is that if a complaint is received, or if 4 there is some matter arise in the media or by a question by 5 an opposition member, and asserting that an individual, not a 6 Minister, is not in compliance with the code, my office will 7 always look into it. 8 I would make a distinction between using the 9 formal word, investigate and look into it, but, we certainly 10 do deal with those things and the -- then the responsibility 11 is as the senior public servant, then I would be advising the 12 Clerk of the Privy Council the head of the public service, of 13 that. And if they fall within the purview of this -- of our 14 code, so, we -- we have a capacity to do that. 15 MADAM COMMISSIONER: Mr. Wilson, you're going 16 to be here, I gather until four o'clock, so I just want to 17 give you this opportunity if you'd like it, to have a ten 18 (10) minute break. And if you don't want it, we'll just 19 carry right through. 20 MR. HOWARD WILSON: No, I'm fine. 21 MADAM COMMISSIONER: Your choice, okay, fine. 22 I'm ready. 23 MR. DAVID BUTT: Thank you. 24 MADAM COMMISSIONER: Thank you. 25 MR. DAVID BUTT: Could I just ask a question
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1 along the lines of transparency and again much of your work 2 is concerned with making transparent issues that are 3 potentially problematic for public office holders. 4 Can you give us any sense of how you approach 5 this notion of -- appropriate transparency in Government and 6 appropriate confidentiality? 7 MR. HOWARD WILSON: Yes. And Canada is a very 8 different country than the United States, in this area. The 9 practice in the United States is that for all senior public 10 servants, there is a requirement to have a public disclosure 11 of their assets and liabilities annually and it's a condition 12 of this. 13 I have always found this to be -- I haven't 14 found this to be an approach that I would recommend and I 15 think Canadians have a much stronger sense of their own 16 privacy and I don't think it's necessary. 17 It's inquisitive, but, I think that what is 18 important here is that we takes the steps necessary to remove 19 those interests where there is a possibility of a conflict, 20 remove them from the beginning and then the public interest 21 will be protected. 22 So the question of the confidential disclosure 23 is very important, that it be confidential and my database is 24 protected by the Privacy Act and -- and so that if you were 25 to make an access for information request to my office, you
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1 may get some information but you would not get any of the 2 private information. 3 My concern would be is that if there was any 4 danger of that information be coming into the public domain 5 then people would not be inclined to tell me everything and 6 what is very important is that my office know this so that we 7 can, in fact, recommend the appropriate steps to be taken. 8 On the other hand, there are some important 9 issues that have to be -- have to be in the public domain; 10 that might be your past activities, that I was a Director of 11 this or that and if we don't permit individuals to have -- to 12 be active investor in the stock market. 13 If they have shares and they want to continue 14 then it's going to have to be through a -- through a blind 15 trust which is only for publicly-traded securities which has 16 then got some credibility because it's in the hands of an 17 arm's length broker, probably the person who does the 18 investments on your behalf and the information that you can 19 get is restricted to the value of the trust not of its 20 composition, but that -- the fact that there is a trust has 21 got to be a matter of public -- public record. 22 If it was a private company there could be no 23 credibility of a blind trust because you obviously know what 24 your interests are. Perhaps you owned, at one time, a 25 shipping company and there the instrument that is important
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1 is to say that you cannot have day-to-day management of your 2 interests. 3 So that the management responsibility, the 4 day-to-day management responsibility of that interest is got 5 -- is to be put into the hands of an arm's length to you but 6 that is not sufficient. The public has a right to know that 7 you've got that interest, there has to be a public 8 declaration that goes on and says that -- that I own the 9 following company. 10 And so that has to be a matter of public 11 record and is. We have taken it a step further with the new 12 code that was issued in December by saying that the question 13 of the recusals that may be required will also be a matter of 14 public record. They often are with -- with a prominent 15 politician perhaps, but they weren't done formally and now 16 they will be done formally for all public office holders. 17 So there will be, do they have an interest 18 that has required a recusal and -- and, if so, what is the 19 area of recusal and what is the process in place that -- that 20 is going to ensure the recusal is respected; that is where I 21 think strikes the proper balance between the importance of 22 transparency and the need to protect private interests. 23 MR. DAVID BUTT: Now, just looking at the -- 24 the structure of the office, I understand that at the Federal 25 level we're at another stage of evolution in that -- in the
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1 sense that we're moving from the Ethics Counsellor to the 2 Ethics Commissioner model. Again, with a view to what might 3 be helpful in the municipal context, could you help us with 4 what structural features of that office will change and the 5 importance or value of those -- of those changes? 6 MR. HOWARD WILSON: Well, I think probably 7 the most important change is that there will be a Code of 8 Conduct applying to members of the House of Commons and a 9 code of conduct applying to members of the Senate. The 10 Federal level is one of the -- is essentially the -- the only 11 jurisdiction in the country, Provincial, that does not have a 12 code of conduct applying to their parliamentarians. 13 There is such a code for a long time in -- in 14 Ontario and the other provinces. Commissioners, in the case 15 of Ontario an Integrity Commissioner, and it sets out the 16 rules, a code of -- effectively a Code of Conduct for -- for 17 members of the -- of the Legislature. 18 There were a number of attempts made in the 19 1980's and 1990's trying to achieve this and they had all 20 failed. We're very close now and the -- the question here 21 that may be very relevant, and I'm not sure just how it fits 22 into -- into the Municipal, is that the Code of Conduct that 23 will be put in place, not through statute, it will be done by 24 the rules of each respective Chamber, recognize that there is 25 a significant difference in the decision making power of a
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1 member of Parliament or a Senator, from members of the 2 Cabinet. 3 And so if you -- so you -- you have 4 essentially the idea of a disclosure system. What are our 5 interests? But you -- you're not as -- as a member of 6 Parliament or as a member of the Senate, you can still 7 practice a profession. You can -- you can still be a -- be a 8 director. You can operate a business. 9 You have to balance that against your -- your 10 public responsibilities in terms of time, and it may require 11 you to absent yourself on a -- on a particular issue that 12 comes forward for a vote. 13 But the kinds of steps that we require here 14 for -- for members of the Cabinet, would be most 15 inappropriate for -- for ordinary members of the Legislature, 16 and I'm not sure just where -- again it's the decision making 17 capacity. 18 Now, I'm just not sure, where do you 19 categorize Council? Is Council legislative primarily, or is 20 it executive? And it's -- it's a -- it's an interesting 21 question, I don't know the answer. 22 MR. DAVID BUTT: Right, and you do have the 23 phenomenon, perhaps less so in Toronto, but of part-time 24 Councillors who very much are -- 25 MR. HOWARD WILSON: Hmm hmm.
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1 MR. DAVID BUTT: -- involved in outside 2 activities, necessarily so for their livelihood, so -- 3 MR. HOWARD WILSON: In which case then the -- 4 the question of disclosure is absolutely essential. What are 5 those outside interests, and I think that there was sort of 6 an intimation, if I read it correctly, in -- in one (1) of 7 the -- the research papers, that you know this shouldn't -- 8 you know, obviously shouldn't apply to part-timers. 9 I would have taken exactly the -- the reverse 10 to say that, indeed this is very, very important for the 11 part-time Councillors, because they do have these outside 12 interests, and there should be some transparency on what 13 those are, and there should be some understanding; and this 14 is where a Commissioner can play a particularly important 15 role in recommending what are the issues that you should 16 stand back on, because of your private -- private interests. 17 And so that in a way you are acknowledging 18 that it's more like the Legislature than it is like a 19 Cabinet. 20 MR. DAVID BUTT: Yes, and just in terms of 21 what's contemplated at the Federal level for 22 Parliamentarians, as opposed to public office holders, is it 23 the case then that there would be mandatory, say annual 24 disclosure with -- with updates annually as was contemplated 25 -- as you explained for public office holders as well?
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1 MR. HOWARD WILSON: Yes, I think that they 2 haven't finished off drafting up their codes, but I think 3 this -- this would be the -- the intent, and that there would 4 be some public disclosure office. A confidential disclosure 5 in other words, to the -- to the Commissioner. And then some 6 part of that would be made public, but there would be no 7 attempt made to limit the outside activities that they could 8 participate in. 9 Then the -- then if they are a member of a 10 House of Commons, who also becomes a Cabinet Minister, then 11 the -- it's recognized that another set of rules and 12 obligations are placed on them; the Prime Minister's rules. 13 And so this code here will be re-issued, and 14 my title will be removed and the other title will be put in, 15 and -- but it will still be the Prime Minister's code of the 16 obligations that he is placing on his Ministers, but they 17 would all be members of the House of Commons, have the 18 obligation to do whatever the House of Commons code states. 19 MR. DAVID BUTT: Are there -- are there any 20 other than -- apart from this new Code of Conduct, any other 21 structural changes that are -- are worthy of note, and again 22 in thinking -- ultimately in the Municipal context, as we 23 move to the new regime Federally? 24 MR. HOWARD WILSON: Well, no, I -- I -- 25 there's going to be -- there's going to be an office, the --
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1 currently in the legislation, it is proposed that the office 2 be a Parliamentary office as opposed to a -- to creating a 3 structure such as the Auditor General, or -- or the Privacy 4 Commissioner or the Access to Information Commissioner, where 5 the -- the head -- the Auditor General is an Officer of 6 Parliament, but all of her staff are public servants, and the 7 same is true of the Privacy Commissioner and the Information 8 Commissioner. 9 The proposal in the legislation right now, is 10 that they would not be. They would -- they would be 11 employees of Parliament and it's -- but I don't think from 12 your perspective that that is a substantive point, at all. 13 MR. DAVID BUTT: I guess just related to that, 14 is the -- is the notion of the -- the independence, the 15 necessary independence of an Ethics Councillor or 16 Commissioner. First of all, I hope I don't assume wrongly 17 that you think that's an important aspect of the role to have 18 a measure of independence? 19 MR. HOWARD WILSON: Yes, and although there's 20 been much public discussion about this, it's just that I have 21 had consistently from the beginning complete independence, I 22 never received direction from the Prime Minister nor his 23 office, at any time. 24 They always permitted me to get on with it, 25 with my -- with my responsibilities. I dropped a note to
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1 them when I gave -- I said to him in my last annual report on 2 December the 10th that there had been much comment in the -- 3 in the media and by the opposition parties, that by -- my 4 reporting relationship prevented me from having sufficient 5 independence to carry out my work. 6 And said both he and I knew, however, that 7 never in that almost ten (10) year period had he provided any 8 direction. And that was the reason that I had been placed 9 constitutionally the issue is, was that at the end of the 10 day, he is the one who must stand accountable to Parliament, 11 but, I was happy with the reality. 12 But, there is a -- there is a political issue 13 here; the appointment process that is proposed in the 14 legislation for the new Ethics Commissioner will be the same 15 as was for me and that is a name would go forward to the 16 leaders of the other parties in the House of Commons, but, a 17 name essentially being nominated by the Prime Minister. 18 This was the case in my -- in 1994, my name 19 went forward to Lucien Bouchard and to Preston Manning. They 20 were the only two (2) recognized parties, at the time, both 21 parties agreed. 22 Where the issue has become critically 23 important, is the sense that -- that I could be dismissed at 24 a whim and I couldn't actually be fired, I'm a public 25 servant, I mean but I could certainly be removed from my job,
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1 sent on to do something else. 2 But, I have been a strong supporter of the 3 legislation to deal with that critical point of demonstrating 4 publically the independence that, in fact, I have enjoyed. 5 And that is that once appointed, the individual will only be 6 removed by a joint reference of the House of Commons and the 7 Senate. 8 Essentially, the procedure for removing a 9 Judge from the bench and I think that that's important, so 10 that it dispenses with the capacity of somebody to say, well, 11 he's obviously not independent and he's beholden to -- that 12 was not the reality, and made it possible for me to continue 13 in my job. 14 But, it -- but it -- it's an important change 15 which I look forward to seeing. I'm not going to be in that 16 position. I -- but I think it's -- I think it's another 17 important evolution. 18 MADAM COMMISSIONER: I'm sorry I missed the 19 point, it's going to be moved from being able to be fired at 20 whim to a joint decision of Parliament and Senate or the 21 reverse? 22 MR. HOWARD WILSON: Oh, no I am that -- that 23 the independence will have the reality that I've enjoyed, 24 non-interference. 25 MADAM COMMISSIONER: I see. Okay. Thank you.
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1 MR. HOWARD WILSON: Okay. 2 MADAM COMMISSIONER: Right. 3 MR. HOWARD WILSON: And by doing that, then 4 it means that the Prime Minister if he is upset with the 5 conclusion of the Ethics Commissioner is just going to have 6 to live with it. 7 8 (BRIEF PAUSE) 9 10 MR. DAVID BUTT: I'd like to move on to talk a 11 little bit about some perhaps more particular rules and that 12 is the acceptance of gifts, meals, travel, and so on. 13 And I'd like to deal with the public office 14 holders and then your thoughts on MP's more broadly again, 15 remembering our municipal context, that the MP analogy may be 16 the closest one. 17 First of all, can you tell us what those 18 limits are and then I'd secondly like your -- your thoughts 19 on the appropriateness of those limits, as they currently 20 are. 21 MR. HOWARD WILSON: Fine. There's no question 22 that gifts and hospitality are matters that -- that 23 frequently come up, attendance at sporting events and -- and 24 -- and other -- other occasions. 25 And our -- our rules to -- for public office
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1 holders are -- are quite restrictive. They're designed to 2 accommodate ordinary kinds of social activity but they place 3 a limit on it. And that beyond that it's very seldom would 4 it be permitted. 5 The -- the -- the rule is that you can accept 6 hospitality without reference to my office up to two hundred 7 dollars ($200). Two hundred dollars ($200) was a -- was a 8 number that had first come up in Federal conflict legislation 9 in the -- not legislation rules in the late '70s so it's been 10 around an awfully long time and it's obviously -- it's worth, 11 in terms of real effect, is much diminished in -- in those 12 years. 13 MR. DAVID BUTT: And could you help me, just 14 two hundred dollars ($200) per event, over a period of time, 15 how -- how is that -- 16 MR. HOWARD WILSON: Two hundred dollars 17 ($200) per event. And then that would also be coupled with 18 the notion of two hundred dollars ($200) from any one (1) 19 person. 20 MR. DAVID BUTT: Over what period of time? 21 MR. HOWARD WILSON: Over the year. 22 MR. DAVID BUTT: A year, okay? 23 MR. HOWARD WILSON: Okay. So that it's not 24 okay, you can go to a Senators game, for example, but you 25 can't go several times with the same person even though each
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1 individual item -- but it -- but it -- consciously it was 2 decided to allow this to permit meals. It was sporting 3 events, playing a round of golf, going to -- going to the 4 Corel Centre, going to the -- the National Arts Centre. 5 The kind of social hospitality which is -- is 6 fairly standard but the limit was placed at two hundred (200) 7 and beyond two hundred (200) we don't exclude that it might 8 be permitted but it then has to be related to your official 9 duties. 10 And, in the case of hospitality, I am very 11 hard pressed to see how attending some hospitality event 12 would be connected with your official duties. It does happen 13 with -- for a few ministers with respect to gifts where the 14 Prime Minister travels and gets a gift from a -- another head 15 of government and often this will be over two hundred dollars 16 ($200) and you don't have the Prime Minister saying, no, keep 17 it; so there is a -- then a requirement for a public 18 declaration. 19 So we have a system in place which says that 20 if you do receive a gift in the course of your official 21 duties and it's worth more than two hundred (200) then there 22 will be a public declaration saying what it is and what was 23 the circumstance. 24 But practices have changed quite -- quite 25 dramatically and it's -- most ministers don't actually
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1 receive gifts that are worth more than two hundred (200). So 2 they -- we -- we operate, as I say, at a -- at a certain 3 limit to accommodate normal day to day kinds of hospitality 4 but there is a -- there is a limit on it and beyond which it 5 is not -- it's not permissible. 6 The public servants code is -- is more 7 restrictive and -- and here if the department of public 8 works, for example, it's got a very restrictive code -- rule 9 in place with respect to gifts. 10 Public works does most of the purchasing, for 11 example, and the procurement issue is -- is -- is -- is 12 highly sensitive and so, essentially, it's a zero-tolerance, 13 that there may be a set of circumstances where, sort of, a 14 working lunch at which business is being conducted might be 15 permitted but -- but in most instances, I believe that 16 department says, no. 17 And other departments in -- in Ottawa have -- 18 have said, well, it depends on what your function is. If 19 it's procurement then it's -- then it's most certainly is not 20 -- particularly if there is a procurement action taking 21 place. If you're involved in regulatory matters, almost 22 certainly not. 23 If -- if you're involved in policy 24 development, it may be appropriate and so the -- it's defined 25 by -- by the set of circumstances but, most importantly, by
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1 the official's responsibilities and so that -- and I think 2 that this is absolutely essential otherwise it becomes very, 3 very controversial. 4 MR. DAVID BUTT: And I take it then, having 5 described those, generally speaking you're -- you're 6 satisfied with the -- where the limits are set, and -- and 7 how they function? 8 MR. HOWARD WILSON: Yes, I -- I think that 9 they -- they work well, I think that most senior officials 10 know perfectly well what those limits are, the -- the 11 business community understands what those limits are, and so 12 that -- and it -- it has allowed for -- for a certain amount 13 of, as I say, social exchange, which is not offensive I think 14 to the public interest. 15 MR. DAVID BUTT: Do you ever -- not that you 16 would necessarily be in a position to hear comprehensively 17 about this, but do you ever have the perception that -- that 18 these sorts of rules inhibit or are perceived to be 19 inhibitors to the private sector in -- in carrying out their 20 legitimate commercial activities with -- with Government? 21 MR. HOWARD WILSON: Most of the companies that 22 I'm aware of are quite happy with these -- with these 23 particular -- these particular limits, they understand their 24 -- their purpose. They -- they are -- they do allow you to 25 -- to socialize, as I say, whether it's a meal or a golf game
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1 or something like that, and -- and so, I have not received 2 any negative feedback from -- from the private sector. 3 MR. DAVID BUTT: I'd like to talk to -- 4 MADAM COMMISSIONER: I did -- I did see 5 something in the paper recently about the Corel Centre, and 6 how it was having difficulties, because people were not being 7 as willing to accept tickets into the box to watch a game, 8 for example. Have you encountered any -- any feedback about 9 that? 10 MR. HOWARD WILSON: The -- the -- 11 MADAM COMMISSIONER: I don't know if the 12 ticket is more than two hundred dollars ($200), or maybe 13 that's an issue? 14 MR. HOWARD WILSON: No, normally it's not, and 15 so that -- that for public office holders they would be able 16 to -- to go there, but most public servants are not 17 permitted, and -- and this has -- this has created a -- an 18 economic difficulty, unquestionably for the Senators, it has 19 also created an economic difficulty for the National Art 20 Centre, and part of this is -- is attributable to the fact 21 that the high tech community in -- in Ottawa in the past 22 several years, has -- has not been in the best of economic 23 health. 24 And if that were to change, and there was to 25 be widespread hirings again, well then -- then the -- these
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1 -- the Corel Centre and the National Arts Centre would expect 2 to be able to draw upon a wider -- a wider community, but 3 this is a very special situation, and -- for them, and -- and 4 one (1) can be -- one (1) can be sensitive to their economic 5 difficulties, but on the other hand, the -- the rules that 6 apply have to be restrictive. 7 MADAM COMMISSIONER: And now in -- in your 8 situation then, am I right that a Member of Parliament would 9 be able to go to the Corel Centre, but you're saying a public 10 servant would not be able to go? Have I got that right? 11 MR. HOWARD WILSON: I -- I -- it depends on 12 the department, and so -- 13 MADAM COMMISSIONER: Okay. 14 MR. HOWARD WILSON: -- that's why I think that 15 some of them -- 16 MADAM COMMISSIONER: If it's a department that 17 would allow that sort of thing on a normal basis -- 18 MR. HOWARD WILSON: Well, I think some of them 19 do and -- but some other departments have said no. 20 MADAM COMMISSIONER: Right. 21 MR. HOWARD WILSON: -- and the -- the value 22 and -- and ethics document is -- is -- is particularly 23 critical of such events. There are no -- 24 MADAM COMMISSIONER: And are -- 25
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1 MR. HOWARD WILSON: -- rules currently 2 applying to Members of Parliament. 3 MADAM COMMISSIONER: Okay. 4 MR. HOWARD WILSON: And -- 5 MADAM COMMISSIONER: Sorry, I should have said 6 a Minister -- 7 MR. HOWARD WILSON: Ministers. 8 MADAM COMMISSIONER: Or a Parliamentary 9 Secretary or -- 10 MR. HOWARD WILSON: Yeah. But I -- I am also 11 hesitant to go and -- and re-devise a rule around a single 12 institution in the Corel Centre. I think -- I think that the 13 public interest is protected by our rules at two hundred 14 dollars ($200), and I -- I don't see any reason to -- to make 15 a recommendation that they be made more restrictive. 16 MADAM COMMISSIONER: Is there -- is a view by 17 anyone that you're aware of, in -- in -- I guess that's 18 pretty broad, but I'm thinking about whether or not some of 19 the public servants would feel that the public office holders 20 are being allowed a benefit that they are not permitted? 21 MR. HOWARD WILSON: Yes, I think that -- I 22 think that that is very much a -- that that has been raised. 23 MADAM COMMISSIONER: Okay. 24 MR. HOWARD WILSON: And the -- 25 MADAM COMMISSIONER: And what does one do
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1 about that then, if anything? 2 MR. HOWARD WILSON: The -- I think my own 3 preference is not to go off and say under no circumstance 4 should people be prevented from going to the occasional 5 hockey game. My belief is they should be dealt with on a 6 basic principle, as to what is your function? And if your 7 function is engaging in procurement, then I think it's wrong, 8 no matter what the price. 9 If you are regulating an industry then I find 10 it very difficult to believe, that you can justify being 11 entertained by that industry. 12 On the other hand, if you're engaged in -- in 13 policy development it may be a very appropriate way for -- 14 for you to establish a relationship that -- that benefits the 15 public interest, by -- better able to understand the 16 viewpoint of -- of this particular industry. 17 And certainly when -- when I was engaged in 18 trade policy, I found that sometimes that sort of thing was 19 of immeasurable value. Just in terms of allowing me to 20 better understand what were the difficulties of -- of this 21 particular industry, establishing a relationship that if I 22 had a problem I could pick up the telephone and I could get 23 an answer that I was certain was going to be straightforward 24 and -- and helpful. 25 And so -- and this happens in day to day life
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1 in a variety of things. And I never felt that the public 2 interest was ever being negatively impacted. 3 So, my preference is to turn it to what it is 4 are you doing? And -- and if you're engaged in purchasing 5 helicopters, for example, then entertainment by helicopter 6 companies, doesn't seem to be at all acceptable, but, there 7 would be other circumstances, where it might be. 8 MADAM COMMISSIONER: Thanks. 9 10 (BRIEF PAUSE) 11 12 MR. DAVID BUTT: I'd like to deal with perhaps 13 another area of your office, and that is with the code you 14 perform the advice, functions, and disclosure and 15 investigative function we've described, but, is there a need 16 for education around the code, as an additional proactive 17 measure? 18 MR. HOWARD WILSON: Yeah, I think there's 19 never -- there's never enough education done and it's not 20 just the public office holder it's also the public. And I 21 think we're all helped a great deal by -- by the internet and 22 by the ability to be able to put things on websites. 23 But, we've -- we spend time at the beginning, 24 but, the one (1) area where we are in constant sort of 25 discussion, is with Minister's offices. And because there
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1 are a variety of areas where mistakes can very be easily made 2 and they can have -- they can carry a very large consequence. 3 Whether it's the issuing of contracts, whether 4 it's dealing with -- with as I say, the -- the rule we have 5 against dealing with quasi-judicial tribunals, on what basis 6 is it acceptable to deal with a -- with a Crown corporation? 7 Is it acceptable for a Minister's office to -- 8 or a Minister to be in touch with a public servant in another 9 -- another department? And the answer is, no. Because of 10 the accountability, the public servants are not accountable 11 to Parliament. 12 Public servants are accountable to their 13 Minister who, in turn, is accountable to Parliament and it 14 can represent a conflict if a-- if a Minister calls another 15 -- in another department and provides an instruction. Unless 16 that public servant's own Minister has already agreed to it, 17 that there will be that kind of communication because of a 18 shared policy question, for example. 19 So, we -- we try to say that what you -- that 20 you want, if this is going to work, it's always appropriate 21 for a Minister to write to another Minister, on any subject 22 and it's always appropriate for a Minister's office to write 23 to another Minister's office; the political office, on any 24 subject. 25 And so we spend a lot of time doing that kind
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1 of educational process and meeting with them, meeting with 2 them in the constituency offices, as well. More broadly, I 3 think it's a very important function and I'm not satisfied 4 that we -- we do as much as we should. 5 MR. DAVID BUTT: If I could move then from the 6 -- the conflicts in ethics area to deal a little bit with the 7 lobbyist area, you've described, roughly speaking, the 8 features of the lobbyist system, can you give us a sense of 9 how, in your experience, it has improved matters in terms of 10 dealing with lobbyists? 11 MR. HOWARD WILSON: Yeah, I think the -- the 12 -- our -- our essential goal was not to regulate lobbyists. 13 The -- but there was a real life political difficulty that 14 there was a perception that certain lobbyists, because of 15 their connections, had privileged access. 16 And -- and then there was a broader concern 17 that we don't know what's happening. A lot of these 18 conversations are taking place behind closed doors and -- and 19 probably not to the benefit of the public interest. 20 And so the -- the idea then was to say, well, 21 there needs to be transparency, that these are legitimate 22 activities, in my view, enormously important as -- as 23 government has become more complex and affecting such a wide 24 variety of our life and so that lobbyists can, in fact, be of 25 great assistance.
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1 But it is a democratic right to advance an 2 interest but if you're being paid and you're making 3 representations then -- then there should be transparency, 4 that the public indeed has a right to know who's hired you, 5 what are the issues upon which you are going to be 6 communicating and at which government departments. 7 Now, we've had -- there's a sort of a notion 8 generally in -- in public policy which is, if a little bit of 9 information is -- is good, then more information is better. 10 And we have had that debate because, invariably, and I'm sure 11 you -- you may have heard some of this already and you'll 12 probably hear more of it before your hearings are -- are 13 terminated, should we not know how much money is being paid? 14 Should we not know how much money is being 15 expended and parliament has addressed that and has come to 16 the conclusion that we've struck the right balance. And 17 there was quite a debate in the last parliamentary review as 18 to whether the lobbyist should be required to disclose who he 19 or she intends to -- to lobby. 20 Right now, it's only departments. And so you 21 say, I'm going to -- on this issue I'm going to be lobbying 22 Industry Canada and maybe Foreign Affairs and so on and 23 you've said what the -- what the legislation is and what the 24 policy issue is. 25 And it -- it led to quite a -- quite a
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1 thorough exploration of the question and I notice that one of 2 the recommendations that has been made is that the -- the 3 names should be -- should be disclosed. There's actually -- 4 my conclusion on reading that -- 5 MR. DAVID BUTT: Just to help you, in terms 6 of the background papers, although they have the wording 7 recommendation, they're suggestions for discussion -- 8 MR. HOWARD WILSON: Yes. 9 MR. DAVID BUTT: -- and are, by no means, the 10 Inquiry's views. 11 MR. HOWARD WILSON: Okay. Well, let me -- 12 let me -- 13 MR. DAVID BUTT: We've -- 14 MR. HOWARD WILSON: -- in that spirit address 15 a few -- I made some notes for myself. 16 MR. DAVID BUTT: Yes. We certainly welcome 17 points of view on all of the suggestions contained in the 18 research papers. 19 MR. HOWARD WILSON: Okay. Well, they talk in 20 terms of good versus bad lobbying which I would like to -- to 21 speak to a bit but on the recommendations, they -- they had 22 three (3) suggestions. 23 Who is attempting? Okay, well, that's very 24 important that they -- that the -- the lobbyist and the 25 lobbyist's client be a matter of public record. And which
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1 decisions? Absolutely essential. It's what -- what are the 2 issues that are -- that are -- that -- that this person has 3 been hired to -- to advance. 4 And in a municipality then the suggestion was, 5 which decision makers? And I think I'm correct, don't you 6 have about forty (40) councillors? 7 MR. DAVID BUTT: Yes. 8 MR. HOWARD WILSON: Okay. I thought that if 9 you -- you, as a lobbyist, think that there's only two (2) or 10 three (3) councillors who are particularly important on this 11 -- on this file, either because they support your point of 12 view and will argue it or because they are opposed to your 13 point of view and you want to go and convince them, but you 14 don't want to alienate everybody else on the Council. 15 So, I would think they would be tempted to put 16 all forty (40) names down, plus every senior official, again, 17 not wanting to appear -- well, either because they're going 18 to try and hide who they're really trying to speak to, or 19 alternatively not trying to alienate. 20 And it's -- we were concerned also about where 21 does a lobbyist devote his or her attention? Is it at the 22 top level? Frequently when you get to the top level, staff 23 have already made recommendations that are virtually, you 24 know -- it's going to take a very, very strong Council to go 25 and override them.
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1 And it's the same in government departments. 2 That the work begins at a much, much lower level. And so the 3 -- the view was, that no, I think that we struck a balance 4 which says, I'm lobbying Industry Canada and -- on these 5 questions, and that should suffice. 6 We were also concerned a bit about the 7 question of staff -- public servants, because their names 8 were on a public registry, not being prepared to talk to 9 lobbyists. And we thought that that was wrong, that in the 10 modern day government people are supposed to be open and open 11 to public comment. 12 And -- but it could result in a bit of a 13 freeze that people were less inclined to -- to, in fact, 14 engage in these discussions, because they didn't want their 15 name to appear in some public registry. 16 MR. DAVID BUTT: And I suppose that point that 17 you've just made would be applicable as an answer to the 18 question of whether the public servants, themselves, should 19 be obliged to disclose who lobbied them? 20 MR. HOWARD WILSON: We considered that, as 21 well, and that was on the table and was disposed of. Again, 22 a fear that in going after additional information what we 23 were going to do was poison an atmosphere that should be open 24 to -- to getting information and acting upon it. 25 So, that the committee after, as I say, close
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1 examination on two (2) occasions of this, has said that we 2 will just deal with that narrower range of questions. 3 MR. DAVID BUTT: Could you address then, given 4 that the actual people lobbied are not disclosed, is there, 5 of course conversely, concern about the types of lobbying 6 activity that's appropriate and inappropriate? 7 Would you like to comment on that? 8 MR. HOWARD WILSON: This is where the notion 9 in the research talked in terms of good versus bad lobbying. 10 And good lobbying tends to be mostly defined as lobbying that 11 is done on a point that I share. Bad lobbying is carried out 12 by those people who have a different point of view than mine. 13 Okay. And so -- and the question was phrased 14 of legal lobbying. We were concerned about this in the mid- 15 90's, that when the code was being significantly changed, 16 there was a question, has the Government of Canada the right 17 to demand the standards that we expect of lobbyists? 18 In other words, we're saying that lobbying is 19 a legitimate activity, but is there standards that we would 20 legitimately want lobbyists to portray in their dealings with 21 the government? And the answer was yes. 22 And so the legislation then established a 23 process for the lobbyist code of conduct. And it mandated me 24 to hold consultations and develop such a code, which I did 25 and that then came into effect around '87 -- '97.
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1 The -- I have found it to be very, very 2 useful. First of all, it was very, very useful exercise and 3 we consulted very widely. These sorts of things had -- did 4 not exist, and so I tried to -- to base it again on 5 principles, and then on specific rules and the legislation 6 gives -- gives me considerable powers. 7 If I come to the conclusion that there's a 8 reasonable belief that a breach of a rule has occurred, by 9 virtue of that decision in the legislation, I acquire all the 10 powers of a superior Court of record, the powers of subpoena, 11 and -- and the process then would be that there would be an 12 investigation, and there would be a report, and that report 13 would be tabled at Parliament. 14 Parliament came to the view, and this has been 15 maintained in the most recent re-examination of the bill, 16 that there should not be a penalty other than the report; 17 that it was sufficient that -- that the -- the fact that 18 somebody may have been determined to be behaving unethically 19 was sufficient penalty. 20 Now, we have had a number of complaints made, 21 these have -- these had been looked at by my office. I have 22 had to separate myself off from that exploratory stage, 23 because of not wanting to have an apprehension of bias by 24 being engaged at that level; and so my office does this. 25 But we have looked at a number of cases, and
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1 we have yet to -- to find an instance where I have been 2 persuaded that -- that there has been a breach. And one (1) 3 of the reasons for that is that these are the standards that 4 clients would expect of the people that they're hiring. 5 It tries to deal with transparency, that is; 6 fairly describing who it is you're representing and what your 7 purpose is. It tries to ensure that confidential information 8 is -- is fully protected, and it tries to deal with conflict 9 of interest issues. That's important to public officials, 10 but it's also important to -- to the clients. 11 And so that the -- the lobbying community, 12 largely based in -- in Ottawa, but with representatives here 13 and in Montreal and elsewhere, but the bulk in -- in Ottawa 14 as you would expect, these are the standards that -- that 15 they would claim are absolutely essential. 16 And so we think that -- we haven't been 17 hearing the claims that somebody is engaged in -- in 18 inappropriate lobbying activity, which I think is a very 19 positive step. 20 And -- but we have set a standard, and we've 21 said this standard has got to be -- has got to be honoured. 22 MR. DAVID BUTT: Could I ask, we -- we heard 23 this morning from Mr. Sean Moore about the notion that very 24 often many large companies will have their own in-house 25 Government relations experts if I can call them that. So in
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1 -- ineffectively it's first-party lobbying, rather than an 2 outside consultant lobbyist. 3 Would this code of conduct apply to those -- 4 MR. HOWARD WILSON: Yes, it does -- 5 MR. DAVID BUTT: -- individuals? 6 MR. HOWARD WILSON: -- yes, it does. And the 7 -- the new legislation, when it's enacted, will actually 8 widen out the corporate lobbyist definition. There will be 9 those who've spent a significant amount of time, which is the 10 current definition, which we've defined -- or the Registrar 11 has defined to be 20 percent of their time engaged in 12 lobbying activities; but it will add to it, the CEO of the 13 company, and any of his or her direct reports, some part of 14 which is engaged in lobbying activities. 15 And this was in response to -- to -- to 16 concerns in -- in Parliament and by Ministers, that a five 17 (5) minute telephone call from -- from the CEO of a -- of a 18 large corporation might have much greater impact on -- on a 19 Government decision than a year's work by their in-house 20 lobbyist. 21 And so we will have their -- their -- they 22 will be part of the -- the system when it's put in place in 23 the next short while. 24 MR. DAVID BUTT: Now, we -- we heard earlier, 25 our -- people who prepared the research papers were
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1 discussing some of their findings, and -- and the point came 2 up that in the United States, one (1) use of the Lobbyist 3 Registry was sort of a cynical sort of attack based use of 4 the -- of the Registry, by disaffected people, whether it was 5 media, rival politicians, and the concern was that the 6 Lobbyist Registry actually contributed to a net increase in 7 cynicism about the lobbying process. 8 Have you found that to be the -- the case here 9 at all? 10 MR. HOWARD WILSON: No. I -- our -- our 11 experience is -- is quite different and that is -- is that 12 whereas lobbying in -- lobbying activity was a mystery in 13 terms of who was doing what then there was widespread 14 speculation in the -- in the -- in the media and in 15 Parliament about -- that something -- something wrong was 16 going on. 17 Once we had this disclosure and it's possible 18 for -- for you to quickly do a search and find out if anybody 19 has registered, it seems to have -- have changed things. And 20 so you'll see newspaper articles appear from time to time 21 that Company X has hired lobbyist B and -- and so I think 22 that the transper -- the -- the Parliamentary Committee most 23 recent consideration is, yeah, we -- we've got -- it's the 24 right balance and it's -- and it's working. 25 And one of the things I might just mention
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1 here because it was -- it was an interesting experiment in -- 2 in psychology, I think, and that was we wanted to have all of 3 the filings done electronically because they save you an 4 awful lot of money. 5 The person who verifies the registration as to 6 its accuracy and so on is quite different from the person who 7 -- who physically inputs the material where it's prone to 8 mistakes and then somebody has to check it and so on. So we 9 decided to -- to say it's free if you do it electronically 10 but it was going to cost you money, I can't recall what it is 11 now, but we researched it, I think it was a hundred and fifty 12 dollars ($150) or something, if you're going to send us a 13 hard copy, fax or whatever. 14 And -- and we were being told that, no -- no 15 people will still continue to send in the -- in the fax 16 because lobbyists would not be able to do this and made the 17 point that, well, of course, it's not the lobbyist who does 18 it, it's the lobbyist's assistant who -- who does it and -- 19 and he or she is certainly electronically savvy. 20 We are at 99 percent and have been for some 21 years of -- of electronic filing, that's for all three (3) 22 classes of -- of lobbyists and the result of which is, is 23 that I now only have two (2) people working on the lobbyists 24 in my office. Only two (2) people actually do lobbyist work. 25 One is a person who verifies and the other -- the other is
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1 the registrar and it's -- it's more timely and it works well. 2 MR. DAVID BUTT: Could I ask a question, 3 getting back to sanctions for a moment and -- and I 4 appreciate that happily there's -- there's not been a lot of 5 occasion to consider the imposition of sanctions. 6 One could conceive of a situation though 7 where, in the course of a lengthy procurement process, 8 somebody is found to be in violation of the Lobbyists' Code 9 of Conduct, could it potentially be an appropriate sanction 10 to say, well, as a result of that violation, you should not 11 be able to continue to participate in this procurement 12 process that's still ongoing? 13 MR. HOWARD WILSON: Oh, I think -- I think 14 that those kinds of managerial decisions have to be 15 addressed. And if you're dealing with staff well then you -- 16 you have, at the end of the day, the senior official in the 17 -- in -- in the municipality, in government, and they -- or 18 either the direct report, the section head or the head of the 19 -- the senior person, the senior public servant in the 20 municipality has to address that kind of question. 21 And is it appropriate or not given the -- 22 given the circumstance and I -- there may be circumstances 23 where somebody has to be discharged, but, again, I don't know 24 that that's a role of an Ethics Commissioner. 25 I think if the Ethics Commissioner has, in
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1 fact, determined that the -- it was inappropriate given the 2 nature of the code, then the -- the penalty should surely lie 3 within the powers of the -- of the organization. 4 MR. DAVID BUTT: And -- and so if expulsion 5 from the bid process is -- is one contemplated penalty for 6 breach of the ethics code, that could be a contractual 7 element of RFP or could be integrated in that way, directly 8 by the department making the procurement is that -- 9 MR. HOWARD WILSON: Or -- or through a formal 10 recusal process that says that the person is -- cannot work 11 in this area. 12 MR. DAVID BUTT: Could -- could I ask just a 13 -- a couple more questions, being mindful of the time, just 14 tighter questions around the procurement process? 15 First of all, do you have any thoughts on -- 16 on the desirability of -- of contingent or success fees for 17 lobbyist? 18 MR. HOWARD WILSON: The -- this was an issue 19 that -- that was examined. It has a -- it's had a curious 20 history. It came up during the mid-90's when we were 21 changing it and the idea was that we should forbid lobbyists 22 being able to charge contingency fees. 23 And I think at that point in time, the only 24 Province that did not permit contingency fees to be charged 25 by lawyers, was the Province of Ontario. And it was put in.
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1 But, only with respect to -- it was not put 2 into the code, it was -- it's a question of saying do you 3 charge? Because the Federal Government does not have the 4 authority to define those contract provisions. 5 This is -- this is a provincial 6 responsibility. And so the -- the Government of Canada has 7 said that in its purchasing you have to indicate whether or 8 not, you are getting a contingency payment and it's not 9 permitted for grants and contributions -- seeking grants and 10 contributions or seeking contracts. 11 There have been complaints. I've received 12 quite a number of complaints on this. And they're largely 13 for the same reasons that the various law societies change 14 their -- their view on contingency fees for -- for lawyers 15 being that in a lot of circumstances a person may not have 16 the funds to -- to seek justice and so that contingency fees, 17 are a way by which, maybe justice can be better served. 18 There's a parallel situation that has -- there 19 were a number of lobbyists who were prepared to assist small 20 companies in bidding for Federal Government contracts. And 21 they were not charging them, except on a contingency basis. 22 So, there would be a certain percentage if 23 they were successful. If they were not successful, no 24 payments is made. 25 And now they were precluded from doing this
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1 and their complaint is that there are a lot of small 2 companies that find the purchasing system of the Federal 3 Government to be very, very difficult. 4 Now, it's -- the -- a lot of it is electronic 5 and so on, but, it's still complex. And we're talking about 6 having to spend money that may be in very short supply in the 7 company on a -- on something that may never be realized. 8 So, it's -- it -- it has to be very carefully 9 weighed, as is to where does the balance struck? I think 10 that given the way the legal profession itself has moved, 11 that contingency fees might be a very legitimate form for 12 contracts and grants and contributions. 13 But, it's not excluded for other matters 14 because it's simply not a matter that falls within that 15 jurisdiction of the Federal government. 16 MR. DAVID BUTT: And -- and then do -- do you 17 draw any distinctions around the appropriateness of lobbying 18 activity bef -- in the procurement context, before an RFP is 19 -- is issued versus after? 20 MR. HOWARD WILSON: This is not really -- not 21 really my field. But, I think that the -- the rules really 22 do tighten very considerably in most jurisdictions once 23 you've got the RFP out. 24 But, the amount of lobbying that -- that goes 25 on, prior to that is -- is on big contracts, very intense,
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1 but, as long as it's a matter of public record, and that you 2 have been, you've hired so and so, then we're -- then -- then 3 I think the public interest is being protected. 4 One of the things that I should note, is that 5 we do not require company's in-house lobbyist to register for 6 contracts with the Government of Canada. And the reason we 7 do not, is that there are rules on procurement that protect 8 the public interest. 9 And so the fact that the company has got 10 individuals who are advancing the corporate interest, in this 11 area, is not a registerable activity. If they however, are 12 -- looking for policy changes and regulatory change and 13 things of this nature, well, then yes, indeed they do apply. 14 But, the specific provisions in the Lobbyist 15 Registration Act that relates to grants and contributions and 16 to -- and to contracts, do not apply to in-house corporate 17 lobbyists. 18 MR. DAVID BUTT: And -- and that again is 19 because similar transparency principles are addressed in the 20 procurement rules that would apply to -- to those contracts? 21 MR. HOWARD WILSON: Indeed, and it was also to 22 try and prevent a sort of cluttering up the -- the Registry 23 with vast numbers of names, all of which were engaged in 24 legitimate activity, which is trying to advance the interests 25 of the corporation in seeking a contract. And once you use
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1 the -- the idea a significant amount of time, I mean, a large 2 corporation may have, you know, several hundreds of people, 3 or more, who are engaged in that kind of -- of activity. 4 And so -- so there was that exclusion, 5 however, if the company hires an outside consultant lobbyist, 6 well that will be a matter of public record of course. 7 MR. DAVID BUTT: So, the -- so the issue is 8 not whether there should be transparency around that 9 activity, but just where it should be -- 10 MR. HOWARD WILSON: That's right. 11 MR. DAVID BUTT: -- in the context of 12 procurement versus the lobbyist -- 13 MR. HOWARD WILSON: That's correct. 14 MR. DAVID BUTT: -- registry. Now, we've -- 15 MR. HOWARD WILSON: Just one (1) note, just a 16 -- the -- 17 MR. DAVID BUTT: That's fine. 18 MR. HOWARD WILSON: -- again, just a reaction 19 to -- to one (1) of the suggestions that was made where we've 20 had to change the -- the question of what is lobbying 21 activity. The -- the original language was communicating in 22 an attempt to influence any of these following events. 23 And much to our surprise and the surprise of 24 -- of the Department of Justice who had been providing us 25 with advice, it had been decided by prosecutors in Quebec,
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1 that the test was too great, that to try and to prove that 2 the communication was in an attempt to influence, meant in 3 effect, trying to get into the head of the individual, and 4 required a very substantial amount of information that they 5 did not have, to prove beyond a reasonable doubt. 6 So, we consulted and have changed the 7 definition, which says, communicate with respect to any of 8 these, that would we say, that if you've been hired to lobby 9 and you are in fact communicating, then common sense would 10 say that -- that you should register. And we do get those 11 registrations on that standard, but we've had to change the 12 legislation. 13 MR. DAVID BUTT: Okay. Thank you very much, 14 those are -- those are the questions that I have for you now. 15 MR. HOWARD WILSON: Good. 16 MADAM COMMISSIONER: Mr. Wilson, I know you've 17 had an opportunity to see some of our -- our materials, 18 especially those prepared by the consultants that we hired. 19 I'm just wondering if there's anything else, while you're 20 here, if there's anything else that you disagree with, that 21 you think is worth mentioning to me at this point, I'd 22 certainly be happy to hear it? 23 MR. HOWARD WILSON: No, I think -- I think the 24 -- the conflict paper, and the recommendations, suggestions, 25 I think I agree that should be a values based system. They
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1 should be set on a set of principles against which certain 2 rules are elicited, but have the capacity to be able to apply 3 to other situations that may not have occurred to us. 4 I think the -- you -- transparency should be 5 as wide as possible, just in -- just in terms of -- of the 6 rules and how they're -- how they're applying. 7 The question of gifts and -- and hospitality, 8 in most jurisdictions I think have got to be restrictive, and 9 they've got to be clearly defensible publicly, and -- and 10 should be related to function. 11 The -- on the lobbying side, I've made 12 recommendations, to say that good versus bad lobbying, I 13 think that the -- the municipality would have every right to 14 go off and say, here are the standards we expect of those who 15 are going to be lobbying, I mean we did that, and -- and 16 found it a very useful and I think helpful exercise. The 17 lobbying community thought that it was unnecessary, that they 18 had their own standards, that we haven't had that debate in 19 the longest time, they're perfectly happy to work within -- 20 within our code. And -- and I've made the comment that I 21 questioned the -- the value of saying which decision makers. 22 I'm not so sure that it does not have unintended consequences 23 that are not helpful. 24 So, no, I -- I think that's pretty much it. 25 On -- on my plane -- on the flight home I'll think of a
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1 few -- 2 MADAM COMMISSIONER: Thank you. Well, Mr. 3 Wilson, you are a very busy man, and clearly very much in 4 demand, as we see in our newspapers here pretty much every 5 day. And so, I am very grateful to you for having taken the 6 time from -- from your busy professional life to share your 7 expertise with us. 8 It will certainly be helpful to me and the 9 recommendations that I need to make to the mayor of the City 10 of Toronto and to council and I'm very grateful to you for 11 coming. 12 MR. HOWARD WILSON: Well, I always enjoy the 13 opportunity to get down to -- in Toronto which means, not in 14 Ottawa. 15 MADAM COMMISSIONER: All right. Well, we'll 16 adjourn until tomorrow at 10:00 at which time we'll have Mr. 17 Len Brooks the Executive Director of the Clarkson Centre for 18 Business Ethics and Board Effectiveness. And in the 19 afternoon, Ms. Lynn Morrison, the Lobbyist Registrar and the 20 Honourable Coulter Osborne, the Integrity Commissioner. 21 Thank you. 22 THE REGISTRAR: The Inquiry is adjourned 23 until 10:00 a.m. tomorrow, Thursday, January 22nd. 24 25 --- Upon recessing at 4:04 p.m.
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1 Certified Correct 2 3 4 5 _________________________ 6 Carol Geehan 7 Court Reporter 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25