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Commissioner of Lobbying - Karen E. Shepherd Received in Committee of the Whole

Senator Joyal: I wish to address a more pointed issue, namely, what is the definition of a "designated public office holder?" In the act, it refers to that essential definition of people who are targeted in the act. It does not seem that there is any complete definition of what is a "designated public office holder." How will you identify those people? How will you make it known that someone is a "designated public office holder" — that is, the person who is the subject of the act? How will you keep the list up to date? As I understand the act, after a lapse of five years, a person's name disappears from the list. Can you explain to us your approach in relation to that concept of a "designated public office holder?"

Ms. Shepherd: In the front page of the act, there is a definition in terms of "designated public office holder." They are those people who are in minister's offices or in minister of states' offices, and their staff. For the public service, it is those who are at the assistant deputy minister level and above, as indicated in the first part of the Financial Administration Act. The act also talks about an additional 11 designated public office-holders designated by regulation, primarily to cover those in the Armed Forces. There have also been some Governor-in-Council appointments in the Privy Council Office.

In terms of comparable rank, I have issued an interpretation bulletin that indicates that if they are at the EX-4 level or higher, which is the lowest level for the assistant deputy minister; or receiving the equivalent salary range and reporting to a designated public office-holder, which is a deputy minister; then they are considered to be a designated public office-holder. I have also issued an interpretation bulletin for those who are acting in those positions. If they have acted for more than four months in a given year, then they are considered to be a designated public office-holder.

In terms of maintaining a list, there is no mandate in the act for the office to maintain such a list. To be honest, we were going through things and debating whether we should do so. That type of list would be almost impossible to keep because I have no mandate to compel departments to continue to give me that information to put on the site. That type of list would cause enforcement problems for the office. If the list was not up to date and someone was breaching the act in terms of the communication with the monthly reporting, for enforcement reasons there are concerns about trying to maintain a list personally.

I started outreach with departments. I was at a department not long ago. In providing education on the designated public office-holder and having these office-holders see the responsibilities of the act and the consequences for them, senior people around the able said, We should put a list on our website and keep it up to date. It is best for me to encourage departments to prepare that list so that lobbyists know who the designated public office-holder is.

In terms of delivering the messages, for any changes that I have made with respect either to comparable rank or to the interpretation bulletin on an acting appointment, I have sent out more than 150 letters to deputy heads saying, Here is the change; inform your people accordingly so that they are aware of their obligations.

Senator Joyal: From your answer, I understand that no Crown agency, Crown corporations or any other people at that comparable level are included in the act?

Ms. Shepherd: Those who are Governor-in-Council appointments who are in charge of a Crown corporation are covered as a public office-holder. It could affect an initial registration. However, you are correct. In terms of a Crown corporation with a GIC at the head, while that is a public office-holder, they are not a designated public office-holder under the act.

Senator Joyal: If someone lobbied an ambassador of Canada or if someone occupied a similar function in the foreign service of Canada, they are not covered by the act?

Ms. Shepherd: We have had questions about ambassadors and, because of the different role that they play; we are still looking at that question.

Senator Joyal: You have not made a decision on that subject?

Ms. Shepherd: Not formally, no.

Senator Joyal: In your answer to my first question, you said that you have issued an interpretation bulletin. According to section 10(1) of the act, "The Commissioner may issue advisory opinions and interpretation bulletins with respect to the enforcement, interpretation or application of this act, other than under sections 10.2. . . ."

How many interpretation bulletins have you issued since you have been in your function?

Ms. Shepherd: I am trying to remember the number. I do not have an exact number. I have revised a number of them in terms of communicating with a public office-holder and a designated public office-holder, so I would say probably a handful.


Senator Joyal: I beg your pardon?

Ms. Shepherd: I think a handful. I could come back with the exact number.

Senator Joyal: I understand that those bulletins would be on your website where the public could visit to try to understand the way you interpret the act.

Ms. Shepherd: Yes.

Senator Joyal: On issues of reporting to Parliament following an investigation, you have the capacity under the act to initiate investigations, report to Parliament and recommend sanctions. I will read section 14.02 of the Lobbying Act:

14.02 The Commissioner may make public the nature of the offence, the name of the person who committed it, the punishment imposed and, if applicable, any prohibition under section 14.01.

Concerning the "punishment imposed," what variety or diversity of punishment does the act allow?

Ms. Shepherd: As I see the punishment under the act, there is a breach of an act, and there is a criminal sanction for that action. In terms of anything further on 14.02, I would have to give it more thought.

May I go back to the comment on the ambassadors? If the ambassador fits within the definition as I have indicated, then he or she would be subject in terms of being a designated public office-holder. That is if he or she meets the criteria in terms of the salary level and whether he or she reports to a designated public office-holder.

Senator Joyal: So, your judgement is based on his or her salary.

Ms. Shepherd: If the person meets the criteria as indicated in my comparable rank as being an EX-4 level, or the equivalent salary range of that level, and reporting to a designated public office-holder, yes I would deem that person to be a public office-holder.

Senator Joyal: Is a consul general equivalent to that category in the foreign service of Canada?

Ms. Shepherd: I would have to check where a consul general fits in terms of the criteria to be able to answer that question thoroughly.