Law:Conflict of Interest Act

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S.c. 2006, c. 9, s. 2

Assented to 2006-12-12

An Act to establish conflict of interest and post-employment rules for public office holders

(Enacted by section 2 of chapter 9 of the Statutes of Canada, 2006, in force July 9, 2007, see Si/2007-75.)

Contents

Short Title

Short title

1. This Act may be cited as the Conflict of Interest Act.


Interpretation

Definitions

2. (1) The following definitions apply in this Act.

“Commissioner”

« commissaire »

“Commissioner” means the Conflict of Interest and Ethics Commissioner appointed under section 81 of the Parliament of Canada Act.

“common-law partner”

« conjoint de fait »

“common-law partner” means a person who is cohabiting with a public office holder in a conjugal relationship, having so cohabited for a period of at least one year.

“common-law partnership”

« union de fait »

“common-law partnership” means the relationship between two persons who are cohabiting in a conjugal relationship, having so cohabited for a period of at least one year.

“dependent child”

« enfant à charge »

“dependent child” means a child of a public office holder, or a child of the public office holder’s spouse or common-law partner, who has not reached the age of 18 years or who has reached that age but is primarily dependent on the public office holder or public office holder’s spouse or common-law partner for financial support.

“former reporting public office holder”

« ex-titulaire de charge publique principal »

“former reporting public office holder” means a former public office holder who, while in office, was a reporting public office holder.

“gift or other advantage”

« cadeau ou autre avantage »

“gift or other advantage” means

(a) an amount of money if there is no obligation to repay it; and

(b) a service or property, or the use of property or money that is provided without charge or at less than its commercial value.

“ministerial adviser”

« conseiller ministériel »

“ministerial adviser” means a person, other than a public servant, who occupies a position in the office of a minister of the Crown or a minister of state and who provides policy, program or financial advice to that person on issues relating to his or her powers, duties and functions as a minister of the Crown or a minister of state, whether or not the advice is provided on a full-time or part-time basis and whether or not the person is entitled to any remuneration or other compensation for the advice.

clas“ministerial staff”

« personnel ministériel »

“ministerial staff” means those persons, other than public servants, who work on behalf of a minister of the Crown or a minister of state.

“private interest”

« intérêt personnel »

“private interest” does not include an interest in a decision or matter

(a) that is of general application;

(b) that affects a public office holder as one of a broad class of persons; or

(c) that concerns the remuneration or benefits received by virtue of being a public office holder.

“public office holder”

« titulaire de charge publique »

“public office holder” means

(a) a minister of the Crown, a minister of state or a parliamentary secretary;

(b) a member of ministerial staff;

(c) a ministerial adviser;

(d) a Governor in Council appointee, other than the following persons, namely,

(i) a lieutenant governor,

(ii) officers and staff of the Senate, House of Commons and Library of Parliament,

(iii) a person appointed or employed under the Public Service Employment Act who is a head of mission within the meaning of subsection 13(1) of the Department of Foreign Affairs and International Trade Act,

(iv) a judge who receives a salary under the Judges Act,

(v) a military judge within the meaning of subsection 2(1) of the National Defence Act, and

(vi) an officer of the Royal Canadian Mounted Police, not including the Commissioner;

(d.1) a ministerial appointee whose appointment is approved by the Governor in Council; and

(e) a full-time ministerial appointee designated by the appropriate minister of the Crown as a public office holder.

“public sector entity”

« entité du secteur public »

“public sector entity” means a department or agency of the Government of Canada, a Crown corporation established by or under an Act of Parliament or any other entity to which the Governor in Council may appoint a person, but does not include the Senate or the House of Commons.

“public servant”

« fonctionnaire »

“public servant” has the meaning assigned by subsection 2(1) of the Public Servants Disclosure Protection Act, but includes officers and non-commissioned members ofhe Canadian Forces and employees of the Canadian Security Intelligence Service or the Communications Security Establishment.

“reporting public office holder”

« titulaire de charge publique principal »

“reporting public office holder” means a public office holder who is

(a) a minister of the Crown, minister of state or parliamentary secretary;

(b) a member of ministerial staff who works on average 15 hours or more a week;

(c) a ministerial adviser;

(d) a Governor in Council appointee, or a ministerial appointee whose appointment is approved by the Governor in Council, who exercises his or her official duties and functions on a part-time basis but receives an annual salary and benefits;

(e) a Governor in Council appointee, or a ministerial appointee whose appointment is approved by the Governor in Council, who exercises his or her official duties and functions on a full-time basis; or

(f) a full-time ministerial appointee designated by the appropriate minister of the Crown as a reporting public office holder.

“spouse”

« époux »

“spouse” does not include a person from whom a public office holder is separated if all support obligations and family property or patrimony have been dealt with by a separation agreement or a court order.

Family members

(2) The following are the members of a public office holder’s family for the purposes of this Act:

(a) his or her spouse or common-law partner; and

(b) his or her dependent children and the dependent children of his or her spouse or common-law partner.

Relatives

(3) Persons who are related to a public office holder by birth, marriage, common-law partnership, adoption or affinity are the public office holder’s relatives for the purposes of this Act unless the Commissioner determines, either generally or in relation to a particular public office holder, that it is not necessary for the purposes of this Act that a person or a class of persons be considered a relative of a public office holder.


Purpose

Purpose of the Act

3. The purpose of this Act is to

(a) establish clear conflict of interest and post-employment rules for public office holders;

(b) minimize the possibility of conflicts arising between the private interests and public duties of public office holders and provide for the resolution of those conflicts in the public interest should they arise;

(c) provide the Conflict of Interest and Ethics Commissioner with the mandate to determine the measures necessary to avoid conflicts of interest and to determine whether a contravention of this Act has occurred;

(d) encourage experienced and competent persons to seek and accept public office; and

(e) facilitate interchange between the private and public sector.


Part 1. Conflict Of Interest Rules

Conflict of interest

4. For the purposes of this Act, a public office holder is in a conflict of interest when he or she exercises an official power, duty or function that provides an opportunity to further his or her private interests or those of his or her relatives or friends or to improperly further another person’s private interests.

General duty

5. Every public office holder shall arrange his or her private affairs in a manner that will prevent the public office holder from being in a conflict of interest.

Decision-making

6. (1) No public office holder shall make a decision or participate in making a decision related to the exercise of an official power, duty or function if the public office holder knows or reasonably should know that, in the making of the decision, he or she would be in a conflict of interest.

Abstention from voting

(2) No minister of the Crown, minister of state or parliamentary secretary shall, in his or her capacity as a member of the Senate or the House of Commons, debate or vote on a question that would place him or her in a conflict of interest.

Preferential treatment

7. No public office holder shall, in the exercise of an official power, duty or function, give preferential treatment to any person or organization based on the identity of the person or organization that represents the first-mentioned person or organization.

Insider information

8. No public office holder shall use information that is obtained in his or her position as a public office holder and that is not available to the public to further or seek to further the public office holder’s private interests or those of the public office holder’s relatives or friends or to improperly further or to seek to improperly further another person’s private interests.

Influence

9. No public office holder shall use his or her position as a public office holder to seek to influence a decision of another person so as to further the public office holder’s private interests or those of the public office holder’s relatives or friends or to improperly further another person’s private interests.

Offers of outside employment

10. No public office holder shall allow himself or herself to be influenced in the exercise of an official power, duty or function by plans for, or offers of, outside employment.

Gifts and other advantages

11. (1) No public office holder or member of his or her family shall accept any gift or other advantage, including from a trust, that might reasonably be seen to have been given to influence the public office holder in the exercise of an official power, duty or function.

Exception

(2) Despite subsection (1), a public office holder or member of his or her family may accept a gift or other advantage

(a) that is permitted under the Canada Elections Act;

(b) that is given by a relative or friend; or

(c) that is received as a normal expression of courtesy or protocol, or is within the customary standards that normally accompany the public office holder’s position.

Forfeiture

(3) When a public office holder or a member of his or her family accepts a gift or other advantage referred to in paragraph (2)(c) that has a value of $1,000 or more, the gift or other advantage is, unless otherwise determined by the Commissioner, forfeited to Her Majesty in right of Canada.

Travel

12. No minister of the Crown, minister of state or parliamentary secretary, no member of his or her family and no ministerial adviser or ministerial staff shall accept travel on non-commercial chartered or private aircraft for any purpose unless required in his or her capacity as a public office holder or in exceptional circumstances or with the prior approval of the Commissioner.

Contracts with public sector entities

13. (1) No minister of the Crown, minister of state or parliamentary secretary shall knowingly be a party to a contract with a public sector entity under which he or she receives a benefit, other than a contract under which he or she is entitled to pension benefits.

Partnerships and private companies

(2) No minister of the Crown, minister of state or parliamentary secretary shall have an interest in a partnership or private corporation that is a party to a contract with a public sector entity under which the partnership or corporation receives a benefit.

Exception

(3) Subsections (1) and (2) do not apply if the Commissioner is of the opinion that the contract or interest is unlikely to affect the exercise of the official powers, duties and functions of the minister of the Crown, minister of state or parliamentary secretary.

Contracting

14. (1) No public office holder who otherwise has the authority shall, in the exercise of his or her official powers, duties and functions, enter into a contract or employment relationship with his or her spouse, common-law partner, child, sibling or parent.

Public sector entity — public office holders

(2) No public office holder, other than a minister of the Crown, minister of state or parliamentary secretary, who otherwise has the authority shall permit the public sector entity for which he or she is responsible, or to which he or she is assigned, to enter into a contract or employment relationship with his or her spouse, common-law partner, child, sibling or parent except in accordance with an impartial administrative process in which the public office holder plays no part.

Public sector entity — ministers

(3) No minister of the Crown, minister of state or parliamentary secretary who otherwise has the authority shall permit the public sector entity for which he or she is responsible, or to which he or she is assigned, to enter into a contract or employment relationship with his or her spouse, common-law partner, child, sibling or parent.

Other ministers or party colleagues

(4) No minister of the Crown, minister of state or parliamentary secretary who otherwise has the authority shall permit anyone acting on his or her behalf to enter into a contract or employment relationship with a spouse, common-law partner, child, sibling or parent of another minister of the Crown, minister of state or parliamentary secretary or party colleague in Parliament, except in accordance with an impartial administrative process in which the minister of the Crown, minister of state or parliamentary secretary plays no part.

Restriction

(5) Subsection (4) does not apply in respect of the appointment of a member of ministerial staff or a ministerial adviser.

Certain contracts excluded

(6) This section does not apply to a contract for goods or services offered by a public sector entity on the same terms and conditions as to the general public.

Prohibited activities

15. (1) No reporting public office holder shall, except as required in the exercise of his or her official powers, duties and functions,

(a) engage in employment or the practice of a profession;

(b) manage or operate a business or commercial activity;

(c) continue as, or become, a director or officer in a corporation or an organization;

(d) hold office in a union or professional association;

(e) serve as a paid consultant; or

(f) be an active partner in a partnership.

Exception

(2) Despite paragraph (1)(c), a reporting public office holder who is a director or officer in a Crown corporation as defined in section 83 of the Financial Administration Act may continue as, or become, a director or officer in a financial or commercial corporation but only if the Commissioner is of the opinion that it is not incompatible with his or her public duties as a public office holder.

Exception

(3) Despite paragraph (1)(c), a reporting public office holder may continue as, or become, a director or officer in an organization of a philanthropic, charitable or non-commercial character but only if the Commissioner is of the opinion that it is not incompatible with his or her public duties as a public office holder.

Political activities

(4) Nothing in this section prohibits or restricts the political activities of a reporting public office holder.

Fundraising

16. No public office holder shall personally solicit funds from any person or organization if it would place the public office holder in a conflict of interest.

Divestiture of controlled assets

17. No reporting public office holder shall, unless otherwise provided in Part 2, hold controlled assets as defined in that Part.

Anti-avoidance

18. No public office holder shall take any action that has as its purpose the circumvention of the public office holder’s obligations under this Act.

Condition of appointment or employment

19. Compliance with this Act is a condition of a person’s appointment or employment as a public office holder.


Part 2. Compliance Measures

Interpretation

Definitions

20. The following definitions apply in this Part.

“assets”

« bien »

“assets” includes any trusts in respect of which a public office holder or a member of his or her family is a beneficiary.

“controlled assets”

« bien contrôlé »

“controlled assets” means assets whose value could be directly or indirectly affected by government decisions or policy including, but not limited to, the following:

(a) publicly traded securities of corporations and foreign governments, whether held individually or in an investment portfolio account such as, but not limited to, stocks, bonds, stock market indices, trust units, closed-end mutual funds, commercial papers and medium-term notes;

(b) self-administered registered retirement savings plans, self-administered registered education savings plans and registered retirement income funds composed of at least one asset that would be considered controlled if held outside the plan or fund;

(c) commodities, futures and foreign currencies held or traded for speculative purposes; and

(d) stock options, warrants, rights and similar instruments.

“exempt assets”

« bien exclu »

“exempt assets” means assets and interests in assets for the private use of public office holders and the members of their family and assets that are not of a commercial character, including the following:

(a) primary and secondary residences, recreational property and farm land and buildings used or intended for use by public office holders or the members of their family;

(b) household goods and personal effects;

(c) works of art, antiques and collectibles;

(d) automobiles and other personal means of transportation;

(e) cash and deposits;

(f) Canada Savings Bonds and other similar investments issued or guaranteed by any level of government in Canada or agencies of those governments;

(g) registered retirement savings plans and registered education savings plans that are not self-administered or self-directed;

(h) investments in open-ended mutual funds;

(i) guaranteed investment certificates and similar financial instruments;

(j) public sector debt financing not guaranteed by a level of government, such as university and hospital debt financing;

(k) annuities and life insurance policies;

(l) pension rights;

(m) money owed by a previous employer, client or partner;

(n) personal loans receivable from the public office holder’s relatives, and personal loans of less than $10,000 receivable from other persons if te public office holder has loaned the moneys receivable;

(o) money owed under a mortgage or hypothec of less than $10,000;

(p) self-administered or self-directed registered retirement savings plans, registered education savings plans and registered retirement income funds composed exclusively of assets that would be considered exempt if held outside the plan or fund; and

(q) investments in limited partnerships that are not traded publicly and whose assets are exempt assets.


Recusal

Duty to recuse

21. A public office holder shall recuse himself or herself from any discussion, decision, debate or vote on any matter in respect of which he or she would be in a conflict of interest.


Confidential Disclosure

Confidential report

22. (1) A reporting public office holder shall, within 60 days after the day on which he or she is appointed as a public office holder, provide a confidential report to the Commissioner.

Content of report

(2) The report required under subsection (1) must contain the following:

(a) a description of all of the reporting public office holder’s assets and an estimate of their value;

(b) a description of all of the reporting public office holder’s direct and contingent liabilities, including the amount of each liability;

(c) a description of all income received by the reporting public office holder during the 12 months before the day of appointment and all income the reporting public office holder is entitled to receive in the 12 months after the day of appointment;

(d) a description of all activities referred to in section 15 in which the reporting public office holder was engaged in the two-year period before the day of appointment;

(e) a description of the reporting public office holder’s involvement in philanthropic, charitable or non-commercial activities in the two-year period before the day of appointment;

(f) a description of all of the reporting public office holder’s activities as trustee, executor or liquidator of a succession or holder of a power of attorney in the two-year period before the day of appointment; and

(g) any other information that the Commissioner considers necessary to ensure that the reporting public office holder is in compliance with this Act.

Additional content

(3) A minister of the Crown, minister of state or parliamentary secretary shall make reasonable efforts to include in the report the information referred to in subsection (2) for each member of his or her family.

Benefits from contracts

(4) A reporting public office holder shall include in the report a description of all benefits that he or she, any member of his or her family or any partnership or private corporation in which he or she or a member of his or her family has an interest is entitled to receive during the 12 months after the day of appointment, as a result of a contract with a public sector entity and the report must include a description of the subject-matter and nature of the contract.

Notification of material change

(5) If there is a material change in any matter in respect of which a reporting public office holder is required to provide a confidential report under this section, the reporting public office holder shall, within 30 days after the change, file a report with the Commissioner describing the material change.

Disclosure of gifts

23. If the total value of all gifts or other advantages accepted by a reporting public office holder or a member of his or her family exceeds $200 from any one source other than relatives and friends in a 12-month period, the reporting public office holder shall disclose the gifts or other advantages to the Commissioner within 30 days after the day on which the value exceeds $200.

Disclosure of offers

24. (1) A reporting public office holder shall disclose in writing to the Commissioner within seven days all firm offers of outside employment.

Disclosure of acceptance

(2) A reporting public office holder who accepts an offer of outside employment shall within seven days disclose his or her acceptance of the offer in writing to the Commissioner as well as to the following persons:

(a) in the case of a minister of the Crown or minister of state, to the Prime Minister;

(b) in the case a parliamentary secretary, to the minister whom the parliamentary secretary assists;

(c) in the case of deputy heads, to the Clerk of the Privy Council; and

(d) in the case of any other reporting public office holder, to the appropriate minister.


Public Declaration

Public declaration — recusal

25. (1) If a reporting public office holder has recused himself or herself to avoid a conflict of interest, the reporting public office holder shall, within 60 days after the day on which the recusal took place, make a public declaration of the recusal that provides sufficient detail to identify the conflict of interest that was avoided.

Public declaration — certain assets

(2) A reporting public office holder shall, within 120 days after the day on which he or she is appointed as a public office holder, make a public declaration of all of his or her assets that are neither controlled assets nor exempt assets.

Public declaration — liabilities

(3) A minister of the Crown, minister of state or parliamentary secretary shall, within 120 days after the day on which he or she is appointed, make a public declaration with respect to all of his or her liabilities of $10,000 or more that provides sufficient detail to identify the source and nature of the liability but not the amount.

Public declaration — outside activities

(4) If a reporting public office holder holds a position referred to in subsection 15(2) or (3), the reporting public office holder shall, within 120 days after the day on which he or she is appointed, make a public declaration of that fact.

Public declaration — gifts

(5) If a reporting public office holder or a member of his or her family accepts any single gift or other advantage that has a value of $200 or more, other than one from a relative or friend, the reporting public office holder shall, within 30 days after accepting the gift or other advantage, make a public declaration that provides sufficient detail to identify the gift or other advantage accepted, the donor and the circumstances under which it was accepted.

Public declaration — travel

(6) If travel has been accepted in accordance with section 12, from any source, the minister of the Crown, minister of state or parliamentary secretary concerned shall, within 30 days after the acceptance, make a public declaration that provides sufficient detail to identify the source and the circumstances under which the travel was accepted.

Summary statement

26. (1) A reporting public office holder shall, within 120 days after the day on which he or she is appointed, sign a summary statement containing the information required under subsection (2) and provide it to the Commissioner.

Content

(2) The summary statement must contain the following:

(a) for each controlled asset of the reporting public officer holder, and for each asset of the reporting public office holder that the Commissioner has ordered divested under section 30, a description of the asset and the method used to divest it;

(b) for each matter in respect of which the Commissioner has ordered a reporting public office holder to recuse himself or herself under section 30, a description of the matter and information regarding the process to be put in place by the reporting public office holder and others to effect the recusal; and

(c) for any other matter in respect of which the Commissioner has issued an order to the reporting public office holder under section 30, a description of the matter and the order, and the steps taken to comply with the order.


Divestment

Divestment on appointment

27. (1) Subject to subsections (9) and (10), a reporting public office holder shall, within 120 days after the day on which he or she is appointed as a reporting public office holder, divest each of his or her controlled assets by doing one of the following:

(a) selling it in an arm’s-length transaction; or

(b) placing it in a blind trust that meets the requirements of subsection (4).

Divestment of gift or bequest

(2) Subject to subsections (9) and (10), a reporting public office holder shall, within 120 days after the day on which he or she receives controlled assets by way of gift or testamentary disposition or in any other way over which the reporting public office holder has no control, divest the controlled assets in the manner required by subsection (1).

Prohibition on blind management agreement

(3) For greater certainty, a reporting public office holder may not divest his or her controlled assets by any measure other than one referred to in subsection (1), including by placing them in a blind management agreement.

Blind trust requirements

(4) The terms of a blind trust must provide that

(a) the assets to be placed in trust shall be registered to the trustee unless they are in a registered retirement savings plan account;

(b) the reporting public office holder shall not have any power of management or control over the trust assets;

(c) the trustee shall not seek or accept any instruction or advice from the reporting public office holder concerning the management or the administration of the assets;

(d) the assets placed in the trust shall be listed on a schedule attached to the instrument or contract establishing the trust;

(e) the term of any trust shall be for as long as the reporting public office holder who establishes the trust continues to hold his or her office, or until the trust assets have been depleted;

(f) the trustee shall deliver the trust assets to the reporting public office holder when the trust is terminated;

(g) the trustee shall not provide information about the trust, including its composition, to the reporting public office holder, except for information that is required by law to be filed by the reporting public office holder and periodic reports on the overall value of the trust;

(h) the reporting public office holder may receive any income earned by the trust, and add to or withdraw from the capital funds in the trust;

(i) the trustee shall be at arm’s length from the reporting public office holder and the Commissioner is to be satisfied that an arm’s length relationship exists;

(j) the trustee must be

(i) a public trustee,

(ii) a public company, including a trust company or investment company, that is known to be qualified to perform the duties of a trustee, or

(iii) an individual who may perform trustee duties in the normal course of his or her work; and

(k) the trustee shall provide the Commissioner, on every anniversary of the trust, a written annual report verifying as to accuracy the nature and market value of the trust, a reconciliation of the trust property, the net income of the trust for the preceding year, and the fees of the trustee, if any.

eneral investment instructions

(5) Despite subsection (4), general investment instructions may be included in a blind trust instrument or contract but only with the prior approval of the Commissioner. The instructions may provide for proportions to be invested in various categories of risk, but may not be industry-specific, except if there are legislative restrictions on the type of assets that a public office holder may own.

No oral instructions

(6) For greater certainty, no oral investment instructions may be given with respect to a blind trust contract or instrument.

Confirmation of sale or trust

(7) A reporting public office holder shall provide to the Commissioner a confirmation of sale or a copy of any contract or instrument establishing the trust in respect of any controlled asset divested under subsection (1).

Information confidential

(8) Unless otherwise required by law, the Commissioner shall keep confidential all information provided by a reporting public office holder relating to a divestment under subsection (1), except the fact that a sale has taken place or that a trust exists.

Security

(9) Subject to the approval of the Commissioner, a reporting public office holder is not required to divest controlled assets that are given as security to a lending institution.

Assets of minimal value

(10) A reporting public office holder who is not a minister of the Crown, a minister of state or a parliamentary secretary is not required to divest controlled assets if, in the opinion of the Commissioner, the assets are of such minimal value that they do not constitute any risk of conflict of interest in relation to the reporting public office holder’s official duties and responsibilities.


Functions of the Commissioner

Annual review

28. The Commissioner shall review annually with each reporting public office holder the information contained in his or her confidential reports and the measures taken to satisfy his or her obligations under this Act.

Determination of appropriate measures

29. Before they are finalized, the Commissioner shall determine the appropriate measures by which a public office holder shall comply with this Act and, in doing so, shall try to achieve agreement with the public office holder.

Compliance order

30. In addition to the specific compliance measures provided for in this Part, the Commissioner may order a public office holder, in respect of any matter, to take any compliance measure, including divestment or recusal, that the Commissioner determines is necessary to comply with this Act.

Reimbursement of costs

31. (1) The Commissioner may order that the following administrative costs incurred by a public office holder be reimbursed:

(a) in relation to a divestment of assets,

(i) reasonable legal, accounting and transfer costs to establish and terminate a trust determined to be necessary by the Commissioner,

(ii) annual, actual and reasonable costs to maintain and administer the trust, in accordance with rates set from time to time by the Commissioner,

(iii) commissions for transferring, converting or selling assets where determined necessary by the Commissioner,

(iv) costs of other financial, legal or accounting services required because of the complexity of the arrangements for the assets, and

(v) commissions for transferring, converting or selling assets if there are no provisions for a tax deduction under the Income Tax Act; and

(b) in relation to a withdrawal from activities, the costs of removing a public office holder’s name from federal or provincial registries of corporations.

Restriction

(2) The following administrative costs are not eligible to be reimbursed under subsection (1):

(a) charges for the day-to-day operations of a business or commercial entity;

(b) charges associated with winding down a business;

(c) costs for acquiring permitted assets using proceeds from the required sale of other assets; and

(d) any income tax adjustment that may result from the reimbursement of trust costs.

Post-employ­ment obligations

32. Before a public office holder’s last day in office, the Commissioner shall advise the public office holder of his or her obligations under Part 3.


Part 3. Post-employment

Rules for All Former Public Office Holders

Prohibitions after leaving office

33. No former public office holder shall act in such a manner as to take improper advantage of his or her previous public office.

Previously acting for Crown

34. (1) No former public office holder shall act for or on behalf of any person or organization in connection with any specific proceeding, transaction, negotiation or case to which the Crown is a party and with respect to which the former public office holder had acted for, or provided advice to, the Crown.

Improper information

(2) No former public office holder shall give advice to his or her client, business associate or employer using information that was obtained in his or her capacity as a public office holder and is not available to the public.


Rules for Former Reporting Public Office Holders

Prohibition on contracting

35. (1) No former reporting public office holder shall enter into a contract of service with, accept an appointment to a board of directors of, or accept an offer of employment with, an entity with which he or she had direct and significant official dealings during the period of one year immediately before his or her last day in office.

Prohibition on representations

(2) No former reporting public office holder shall make representations whether for remuneration or not, for or on behalf of any other person or entity to any department, organization, board, commission or tribunal with which he or she had direct and significant official dealings during the period of one year immediately before his or her last day in office.

Prohibition on former ministers

(3) No former reporting public office holder who was a minister of the Crown or minister of state shall make representations to a current minister of the Crown or minister of state who was a minister of the Crown or a minister of state at the same time as the former reporting public office holder.

Time limits: former reporting public office holder

36. (1) With respect to all former reporting public office holders except former ministers of the Crown and former ministers of state, the prohibitions set out in subsections 35(1) and (2) apply for the period of one year following the former reporting public office holder’s last day in office.

Time limits: former ministers

(2) With respect to former ministers of the Crown and former ministers of state, the prohibitions set out in subsections 35(1) to (3) apply for a period of two years following their last day in office.

Report to Commissioner

37. (1) A former reporting public office holder who, during the applicable period under section 36, has any communication referred to in paragraph 5(1)(a) of the Lobbying Act or arranges a meeting referred to in paragraph 5(1)(b) of that Act shall report that communication or meeting to the Commissioner.

Requirement to file return

(2) The former reporting public office holder shall file a return that

(a) sets out, with respect to every communication or meeting referred to in subsection (1),

(i) the name of the public office holder who was the object of the communication or meeting,

(ii) the date of the communication or meeting,

(iii) particulars to identify the subject-matter of the communication or meeting, and

(iv) any other information that the Commissioner requires; and

(b) if any information contained in the return is no longer correct or additional information that the former reporting public office holder would have been required to provide in the return has come to his or her knowledge after the return was filed, provides the corrected or additional information.

2006, c. 9, ss. 2 "37", 36.

Previous VersionExemption

38. (1) The Commissioner may, on application, exempt from the application of section 35 or 37 a former reporting public office holder who, while in office, was a member of ministerial staff who worked on average 15 hours or more a week.

Criteria

(2) An exemption may only be granted under subsection (1) in respect of a person based on the following criteria:

(a) the person was not a senior member of ministerial staff;

(b) the person’s functions did not include the handling of files of a political or sensitive nature, such as confidential cabinet documents;

(c) the person had little influence, visibility or decision-making power in the office of a minister of the Crown or a minister of state; and

(d) the person’s salary level was not commensurate with the person having an important role in that office.

Notice of decision

(3) The decision made by the Commissioner shall be communicated in writing to the person who applied for the exemption.

Publication

(4) If the Commissioner has granted an exemption in accordance with this section, the Commissioner shall publish the decision and the reasons in the public registry maintained under section 51.


Functions of the Commissioner

Waiver or reduction of limitations

39. (1) On application by a reporting public office holder or a former reporting public office holder, the Commissioner may waive or reduce any applicable period set out in section 36.

Balancing

(2) In exercising his or her discretion under subsection (1), the Commissioner shall consider whether the public interest in granting the waiver or reduction outweighs the public interest in maintaining the prohibition.

Factors to be considered

(3) In determining the public interest for the purposes of subsection (2), the Commissioner shall consider the following factors:

(a) the circumstances under which the reporting public office holder left his or her office;

(b) the general employment prospects of the reporting public office holder or former reporting public office holder;

(c) the nature, and significance to the Government of Canada, of information possessed by the reporting public office holder or former reporting public office holder by virtue of that office holder’s public office;

(d) the facilitation of interchange between the private and public sector;

(e) the degree to which the new employer might gain unfair commercial advantage by hiring the reporting public office holder or former reporting public office holder;

(f) the authority and influence possessed by the reporting public office holder or former reporting public office holder while in public office; and

(g) the disposition of other cases.

Notice of decision

(4) The decision made by the Commissioner shall be communicated in writing to the applicant referred to in subsection (1).

Publication

(5) If the Commissioner has granted a waiver or reduction in accordance with this section, the Commissioner shall publish the decision and the reasons in the public registry maintained under section 51.

Decision of Commissioner

40. On receipt of a report under section 37, the Commissioner shall immediately determine whether the former reporting public office holder is complying with his or her obligations under this Part.

Order: official dealings

41. (1) If the Commissioner determines that a former reporting public office holder is not complying with his or her obligations under this Part, the Commissioner may order any current public office holders not to have official dealings with that former reporting public office holder.

Duty to comply with order

(2) All current public officer holders shall comply with an order of the Commissioner made under subsection (1).

No impact

42. For greater certainty, no exemption granted in respect of a person under section 38 and no waiver or reduction granted in respect of a person under section 39 affects any obligation or prohibition that applies to that person under the Lobbying Act.

2006, c. 9, ss. 2 "42", 35.

Previous Version

Part 4. Administration And Enforcement

Mandate and Powers of the Commissioner

Confidential advice

43. In addition to carrying out his or her other duties and functions under this Act, the Commissioner shall

(a) provide confidential advice to the Prime Minister, including on the request of the Prime Minister, with respect to the application of this Act to individual public office holders; and

(b) provide confidential advice to individual public office holders with respect to their obligations under this Act.

Request from parliamentarian

44. (1) A member of the Senate or House of Commons who has reasonable grounds to believe that a public office holder or former public office holder has contravened this Act may, in writing, request that the Commissioner examine the matter.

Content of request

(2) The request shall identify the provisions of this Act alleged to have been contravened and set out the reasonable grounds for the belief that the contravention has occurred.

Examination

(3) If the Commissioner determines that the request is frivolous or vexatious or is made in bad faith, he or she may decline to examine the matter. Otherwise, he or she shall examine the matter described in the request and, having regard to all the circumstances of the case, may discontinue the examination.

Information from public

(4) In conducting an examination, the Commissioner may consider information from the public that is brought to his or her attention by a member of the Senate or House of Commons indicating that a public office holder or former public office holder has contravened this Act. The member shall identify the alleged contravention and set out the reasonable grounds for believing a contravention has occurred.

Confidentiality

(5) If a member of the Senate or House of Commons receives information referred to in subsection (4), the member, while considering whether to bring that information to the attention of the Commissioner, shall not disclose that information to anyone. If the member brings that information to the attention of the Commissioner under that subsection, the member shall not disclose that information to anyone until the Commissioner has issued a report under this section in respect of the information.

Referral to Speaker

(6) Where the Commissioner is of the opinion that a member of the Senate or House of Commons has failed to comply with the confidentiality provision of subsection (5), the Commissioner may refer the matter, in confidence, to the Speaker of the Senate or House of Commons.

Report

(7) The Commissioner shall provide the Prime Minister with a report setting out the facts in question as well as the Commissioner’s analysis and conclusions in relation to the request. The report shall be provided even if the Commissioner determines that the request was frivolous or vexatious or was made in bad faith or the examination of the matter was discontinued under subsection (3).

Making report available

(8) The Commissioner shall, at the same time that the report is provided under subsection (7), provide a copy of it to the member who made the request — and the public office holder or former public office holder who is the subject of the request — and make the report available to the public.

Confidentiality

(9) The Commissioner may not include in the report any information that he or she is required to keep confidential.

Examination on own initiative

45. (1) If the Commissioner has reason to believe that a public office holder or former public office holder has contravened this Act, the Commissioner may examine the matter on his or her own initiative.

Discontinuance

(2) The Commissioner, having regard to all the circumstances of the case, may discontinue the examination.

Report

(3) Unless the examination is discontinued, the Commissioner shall provide the Prime Minister with a report setting out the facts in question as well as the Commissioner’s analysis and conclusions.

Making report available

(4) The Commissioner shall, at the same time that the report is provided under subsection (3) to the Prime Minister, provide a copy of it to the public office holder or former public office holder who is the subject of the report and make the report available to the public.

Presentation of views

46. Before providing confidential advice under paragraph 43(a) or a report under section 44 or 45, the Commissioner shall provide the public office holder or former public office holder concerned with a reasonable opportunity to present his or her views.

Conclusion in report final

47. A conclusion by the Commissioner set out in a report under section 44 or 45 that a public office holder or former public office holder has or has not contravened this Act may not be altered by anyone but is not determinative of the measures to be taken as a result of the report.

Powers

48. (1) For the purposes of paragraph 43(a) and sections 44 and 45, the Commissioner has the power to summon witnesses and require them

(a) to give evidence — orally or in writing — on oath or, if they are persons entitled to affirm in civil matters, on affirmation; and

(b) to produce any documents and things that the Commissioner considers necessary.

Enforcement

(2) The Commissioner has the same power to enforce the attendance of witnesses and to compel them to give evidence as a court of record in civil cases.

Powers exercised in private

(3) The powers referred to in subsections (1) and (2) shall be exercised in private.

Inadmissibility

(4) Information given by a person under this section is inadmissible against the person in a court or in any proceeding, other than in a prosecution of the person for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made to the Commissioner.

Confidentiality

(5) Unless otherwise required by law, the Commissioner, and every person acting on behalf or under the direction of the Commissioner, may not disclose any information that comes to their knowledge in the performance of their duties and functions under this section, unless

(a) the disclosure is, in the opinion of the Commissioner, essential for the purposes of carrying out his or her powers under subsection (1) or establishing the grounds for any conclusion contained in a report under section 44 or 45; or

(b) the information is disclosed in a report referred to in paragraph (a) or in the course of a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made to the Commissioner.

Suspension of examination

49. (1) The Commissioner shall immediately suspend an examination under section 43, 44 or 45 if

(a) the Commissioner believes on reasonable grounds that the public office holder or former public office holder has committed an offence under an Act of Parliament in respect of the same subject-matter, in which case the Commissioner shall notify the relevant authorities; or

(b) it is discovered that the subject-matter of the examination is also the subject-matter of an investigation to determine whether an offence referred to in paragraph (a) has been committed or that a charge has been laid in respect of that subject-matter.

Investigation continued

(2) The Commissioner may not continue an examination until any investigation or charge in respect of the same subject-matter has been finally disposed of.

No summons

50. (1) The Commissioner, or any person acting on behalf or under the direction of the Commissioner, is not a competent or compellable witness in respect of any matter coming to his or her knowledge as a result of exercising any powers or performing any duties or functions of the Commissioner under this Act.

Protection

(2) No criminal or civil proceedings lie against the Commissioner, or any person acting on behalf or under the direction of the Commissioner, for anything done, reported or said in good faith in the exercise or purported exercise of any power, or the performance or purported performance of any duty or function, of the Commissioner under this Act.

Clarification

(3) The protection provided under subsections (1) and (2) does not limit any powers, privileges, rights and immunities that the Commissioner may otherwise enjoy under section 86 of the Parliament of Canada Act.


Public Registry

Public registry

51. (1) The Commissioner shall maintain a registry consisting of the following documents for examination by the public:

(a) public declarations made under section 25;

(b) summary statements made under section 26;

(c) notes of every gift or other advantage forfeited under subsection 11(3);

(c.1) decisions on exemption applications under section 38 and the accompanying reasons;

(d) decisions on waiver or reduction applications under section 39 and the accompanying reasons; and

(e) any other documents that the Commissioner considers appropriate.

Confidences of Queen’s Privy Council

(2) If a public office holder has recused himself or herself in respect of a matter and a public declaration is made in respect of that recusal under subsection 25(1) or section 30,

(a) no publication of the declaration shall be made if the very fact of the recusal could reveal, directly or indirectly, any of the following:

(i) a confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies, and

(ii) special operational information within the meaning of subsection 8(1) of the Security of Information Act; and

(b) no publication of the declaration shall include any detail that could reveal, directly or indirectly, any of the following:

(i) a confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies,

(ii) special operational information within the meaning of subsection 8(1) of the Security of Information Act,

(iii) information that is subject to solicitor-client privilege,

(iv) information that is subject to any restriction on disclosure created by or under any other Act of Parliament,

(v) information that could reasonably be expected to cause injury to international relations, national defence or national security, or to the detection, prevention or suppression of criminal, subversive or hostile activities,

(vi) information that could reasonably be expected to cause injury to the privacy interests of an individual, or

(vii) information that could reasonably be expected to cause injury to commercial interests.


Administrative Monetary Penalties

Violation

52. Every public office holder who contravenes one of the following provisions commits a violation and is liable to an administrative monetary penalty not exceeding $500:

(a) subsections 22(1), (2) and (5);

(b) section 23;

(c) subsections 24(1) and (2);

(d) subsections 25(1) to (6);

(e) subsections 26(1) and (2); and

(f) subsection 27(7).

Notice of violation

53. (1) If the Commissioner believes on reasonable grounds that a public office holder has committed a violation, the Commissioner may issue, and shall cause to be served on the public office holder, a notice of violation.

Contents of notice

(2) A notice of violation must

(a) set out the name of the public office holder believed to have committed a violation;

(b) identify the violation;

(c) set out the penalty that the Commissioner proposes to impose;

(d) inform the public office holder that he or she may, within 30 days after the notice is served or within any longer period specified by the Commissioner, pay the penalty set out in the notice or make representations to the Commissioner with respect to the alleged violation or proposed penalty and set out the manner for doing so; and

(e) inform the public office holder that, if he or she does not pay the penalty or make representations in accordance with the notice, he or she will be considered to have committed the violation and the Commissioner may impose a penalty in respect of it.

Criteria for penalty

(3) The amount of a proposed penalty is, in each case, to be determined taking into account the following matters:

(a) the fact that penalties have as their purpose to encourage compliance with this Act rather than to punish;

(b) the public office holder’s history of prior violations under this Act during the five-year period immediately before the violation; and

(c) any other relevant matter.

Regulations

54. The Governor in Council may make regulations respecting the service of documents required or authorized to be served under sections 53 to 57, including the manner and proof of service and the circumstances under which documents are deemed to be served.

Payment of penalty

55. If the public office holder pays the penalty proposed in the notice of violation, he or she is considered to have committed the violation and proceedings in respect of it are ended.

Representations to Commissioner

56. (1) If the public office holder makes representations to the Commissioner in accordance with the notice of violation, the Commissioner shall decide, on a balance of probabilities, whether the public office holder committed the violation and, if so, may impose the penalty proposed, a lesser penalty or no penalty.

Notice of decision

(2) The Commissioner shall cause notice of any decision made under subsection (1) to be served on the public office holder.

Failure to act

57. A public office holder who neither pays the penalty nor makes representations in accordance with the notice of violation is deemed to have committed the violation. The Commissioner shall impose the penalty proposed and notify the public office holder of the penalty imposed.

Due diligence available

58. (1) Due diligence is a defence in a proceeding in relation to a violation.

Common law principles

(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence applies in respect of a violation to the extent that it is not inconsistent with this Act.

Evidence

59. In any proceeding, a notice appearing to have been issued under subsection 53(1) or 56(2) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.

Limitation

60. (1) Proceedings in respect of a violation may be commenced at any time within but not later than five years after the day on which the Commissioner became aware of the subject-matter of the proceedings.

Certificate of Commissioner

(2) A document appearing to have been issued by the Commissioner, certifying the day on which the subject-matter of any proceedings became known to the Commissioner, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is, in the absence of evidence to the contrary, proof of the matter asserted in it.

Recovery of administrative monetary penalties

61. Any administrative monetary penalty required to be paid by a public office holder constitutes a debt due to Her Majesty and may be recovered as a debt from the public office holder in the Federal Court or any other court of competent jurisdiction.

Publication

62. If an administrative monetary penalty is imposed on a public office holder in respect of a violation, the Commissioner shall make public the nature of the violation, the name of the public office holder who committed it and the amount of the penalty imposed.


Part 5. General

Section 126 of Criminal Code

63. Section 126 of the Criminal Code does not apply to or in respect of any contravention or alleged contravention of any provision of this Act.

Activities on behalf of constituents

64. (1) Subject to subsection 6(2) and sections 21 and 30, nothing in this Act prohibits a member of the Senate or the House of Commons who is a public office holder or former public office holder from engaging in those activities that he or she would normally carry out as a member of the Senate or the House of Commons.

Rights, etc. not affected

(2) Subject to subsection 6(2) and sections 21 and 30, nothing in this Act abrogates or derogates from any of the privileges, immunities and powers referred to in section 4 of the Parliament of Canada Act.

Limitation period

65. Proceedings under this Act may be taken at any time within but not later than five years after the day on which the Commissioner became aware of the subject-matter of the proceedings and, in any case, not later than ten years after the day on which the subject-matter of the proceeding arose.

Orders and decisions final

66. Every order and decision of the Commissioner is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.

Review

67. (1) Within five years after this section comes into force, a comprehensive review of the provisions and operation of this Act shall be undertaken by such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose.

Report to Parliament

(2) The committee referred to in subsection (1) shall, within a year after a review is undertaken pursuant to that subsection or within such further time as may be authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, submit a report on the review to Parliament, including a statement of any changes that the committee recommends.

Referral from Public Sector Integrity Commissioner

68. If a matter is referred to the Commissioner under subsection 24(2.1) of the Public Servants Disclosure Protection Act, the Commissioner shall

(a) provide the Prime Minister with a report setting out the facts in question as well as the Commissioner’s analysis and conclusions;

(b) provide a copy of the report to the public office holder or former public office holder who is the subject of the report;

(c) provide a copy of the report to the Public Sector Integrity Commissioner; and

(d) make the report available to the public.

2006, c. 9, s. 37.


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