Conflict of Interest Act (S.C. 2006, c. 9, s. 2)

Functions of the Commissioner

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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 3Post-employment

Rules for All Former Public Office Holders

Marginal note: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.

Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note:Exemption

• 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.

• Marginal note: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.

• Marginal note:Notice of decision

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

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Notice of decision

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

• Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note:Duty to comply with order

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

Marginal note: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.

PART 4Administration and Enforcement

Mandate and Powers of the Commissioner

Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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).

• Marginal note: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.

• Marginal note:Confidentiality

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

Marginal note: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.

• Marginal note:Discontinuance

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

• Marginal note: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.

• Marginal note: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.