Conflict of interest management at the federal level has evolved significantly since the 1970s, with the introduction of a legal framework establishing a conflict of interest management regime for both houses of Parliament in 2004, the enactment of the Conflict of Interest Act in 2006 and the creation of the role of Conflict of Interest and Ethics Commissioner.
This HillStudy provides an overview of the evolution of the federal legislative framework on conflicts of interest, including an overall view of the rules that apply to parliamentarians under conflict of interest codes relating to their conduct, and to federal public office holders, including ministers and parliamentary secretaries, under the Conflict of Interest Act.
Conflict of interest rules applicable to ministers, parliamentary secretaries, other public office holders and parliamentarians have been specified in various federal statutes, such as the Criminal Code 1 and the Parliament of Canada Act.2 However, since the adoption of prime minister Pierre Elliott Trudeau's guidelines for Cabinet members in 1973, other conflict of interest rules and guidelines have replaced or supplemented these statutory rules.3
Today, federal conflict of interest management is governed mainly by the Conflict of Interest Act 4 (or the Act), which is applicable to public office holders such as ministers, and by the parliamentary conflict of interest codes that the Senate and the House of Commons have adopted to govern the conduct of their respective members. Integral to this regime are two independent conflict of interest watchdogs, namely the Conflict of Interest and Ethics Commissioner (or the Commissioner) and the Senate Ethics Officer.
In 1985, Brian Mulroney's government replaced the existing guidelines and adopted the first Conflict of Interest and Post-Employment Code for Public Office Holders (Public Office Holders' Code). This code compiled the rules governing ministers, parliamentary secretaries and other senior public office holders in a single document. Nine years later, in 1994, prime minister Jean Chrétien introduced a new Public Office Holders' Code and created the position of Ethics Counsellor with responsibility for its administration. Because the Ethics Counsellor was not independent of the government – given that he or she reported directly to the prime minister, worked under the general direction of the Clerk of the Privy Council and received administrative support from the Department of Industry – this position was often criticized.5
In 2004, amendments to the Parliament of Canada Act 6 provided a legal framework for the establishment of a conflict of interest regime for both houses of Parliament. Two independent conflict of interest watchdog positions were created: the Senate Ethics Officer and the Ethics Commissioner. These officers were responsible for the duties and functions assigned to them, respectively, by the Senate and the House of Commons with regard to governing the ethical conduct of members. The legislative amendments also provided for the adoption by each house of a conflict of interest code pertaining to the conduct of its members.
The Ethics Commissioner, in addition to his or her duties and functions with respect to the members of the House of Commons, replaced the position of the Ethics Counsellor and assumed the functions of that office as it related to public office holders and the Public Office Holders' Code.
The Federal Accountability Act, 7 assented to on 12 December 2006, made two fundamental changes to the Canadian conflict of interest regime. First, it enacted the Conflict of Interest Act, which enshrined in legislation the Public Office Holders' Code.8 The Conflict of Interest Act set out the rules and obligations that apply to Cabinet ministers, parliamentary secretaries and other senior public office holders such as political staff of ministers and most Governor in Council appointees. Second, the Federal Accountability Act amended the Parliament of Canada Act to replace the office of the Ethics Commissioner with that of the Conflict of Interest and Ethics Commissioner.9 The Office of the Commissioner as we know it today began its activities in July 2007.
The Conflict of Interest and Ethics Commissioner has a dual mandate: she or he is responsible both for public office holders under the Conflict of Interest Act and for members of the House of Commons under the Conflict of Interest Code for Members of the House of Commons (Members' Code).10
The Commissioner's mandate in respect of public office holders, as set out in the Conflict of Interest Act, includes the following:
Under the Conflict of Interest Act, any parliamentarian can request, in writing, that the Commissioner examine the conduct of a current or former public office holder if the parliamentarian has a reasonable belief that the person in question has contravened the Act. The Commissioner may also conduct such an examination on her or his own initiative if there is reason to believe that there has been a contravention of the Act.11 The Commissioner provides a report to the prime minister at the conclusion of an examination under the Act, and his or her reports are made public. However, certain types of information obtained in the course of examinations are kept confidential.12
Consistent with the dual mandate, the Conflict of Interest and Ethics Commissioner reports to two House of Commons committees, as follows:
As provided in the Parliament of Canada Act, the Conflict of Interest and Ethics Commissioner also provides confidential policy advice and support to the prime minister in respect of any conflict of interest or ethical issues in general.13
Members of the House of Commons are bound by the Members' Code, which forms Appendix I to the Standing Orders of the House of Commons. The Members' Code articulates several purposes, including that of maintaining and enhancing public confidence and trust in the integrity of members, along with a number of principles intended to guide members in reconciling their private interests and parliamentarian duties, which are a public mandate.
The Members' Code has been amended several times since it came into force upon in October 2004. It addresses the maintenance of the public registry of all members' public disclosure summaries; the provision of written confidential opinions to members; and the conduct of inquiries into any member's alleged non-compliance with obligations under the Members' Code. The Commissioner reports on her or his inquiries to the House and also reports annually on her or his activities respecting members.
The Members' Code prohibits parliamentarians from voting or acting in a way that would further their own or others' private interests and requires that their private interests be disclosed whenever a decision that would affect those interests is under consideration. Members and their families must report to the Commissioner any travel or gifts valued in excess of specified limits. Members, and any corporations owned by them, are prohibited from entering into federal government contracts.14
All members are required to file statements with the Commissioner disclosing the assets and liabilities belonging to them and their families. The Office of the Conflict of Interest and Ethics Commissioner then prepares a disclosure summary based on each member's statement and makes these summaries available for public review on the Commissioner's website.15
Members of the House of Commons may, at any time, ask the Commissioner to offer a confidential opinion about their obligations under the Members' Code. Also, any member who is of the opinion that another member has not fulfilled her or his obligations under the Members' Code may request that the Commissioner conduct an inquiry into the matter. The Commissioner may also conduct an inquiry on her or his own initiative. In conducting such inquiries, the Commissioner must operate in private and with due dispatch, and at all appropriate stages throughout the inquiry the Commissioner must give the member reasonable opportunity to be present and to make representations. In a report on an inquiry, which he or she submits to the Speaker of the House of Commons, the Commissioner may recommend sanctions and must offer reasons for the conclusions and recommendations.
The Members' Code also requires the Standing Committee on Procedure and House Affairs to undertake a comprehensive review of its provisions and operation every five years.16 The most recent review of the Members' Code was completed in 2022.17 In March 2023, the House of Commons adopted the Report of the Standing Committee on Procedure and House Affairs, and its 13 recommendations came into force, amending the Members' Code. The amendments made include the addition of a requirement that members undergo personalized training offered by the Conflict of Interest and Ethics Commissioner within the first 120 days following confirmation of their mandate.18
The Conflict of Interest Act requires that, once they are appointed, public office holders must arrange their private affairs so as to prevent conflicts of interest from arising. With limited exceptions, they must not solicit or accept money or gifts; assist individuals in their dealings with government in such a way as to compromise their own professional status; take advantage of information obtained because of their positions as insiders; or, after they leave public office, act so as to take improper advantage of having held that office. Since 1994, information relating to the spouses and dependent children of ministers, secretaries of state and parliamentary secretaries has also been considered relevant.
More than 2,500 current and former public office holders are currently bound by the Act, including not only the prime minister, ministers, ministers of state, parliamentary secretaries and ministers' exempt staff, but also most full- and part-time Governor in Council appointees, including deputy and associate deputy ministers and heads of agencies, Crown corporations, boards, commissions and tribunals.19 That number may vary from year to year.
The Conflict of Interest Act makes a distinction between reporting and non-reporting public office holders. Reporting office holders include ministers, parliamentary secretaries, ministerial staff who work on average 15 hours or more a week, part-time Governor in Council appointees who receive an annual salary and benefits, and full-time Governor in Council appointees. The obligations imposed on reporting public office holders are, by and large, more stringent than those imposed on non-reporting public office holders.
The Conflict of Interest Act provides that, in order to reduce the risk of conflict of interest, public office holders should use such means as avoidance, a confidential report, a public declaration, divestment or recusal, depending on the asset or interest in question. Divestment can include selling controlled assets to an arm's-length third party or placing the assets in a blind trust under a management agreement. In relation to outside activities, a public office holder must not engage in the practice of a profession; actively manage or operate a business or commercial venture; retain or accept directorships or offices in a financial or commercial corporation; hold office in a union or professional association; or serve as a paid consultant.20
The Conflict of Interest Act also deals with the conduct of public office holders after they leave office. The rules for post-employment are laid out in Part 3 of the Act (sections 33 to 42). These rules establish the general principle that former public office holders cannot act in such a manner as to take improper advantage of their previous public office. They provide that former reporting public office holders cannot:
In addition, former public office holders who were ministers of the Crown or ministers of state cannot make representations to former colleagues who are still in Cabinet.
The prohibitions for former reporting public office holders who were not ministers of the Crown or ministers of state apply for a period of one year following their last day in office. For former ministers of the Crown or ministers of state, the prohibitions apply for a period of two years following their last day in office.
The Act gives the Conflict of Interest and Ethics Commissioner the power to reduce or waive these limitations on application by a current or former reporting public office holder. When making a decision on the application, the Commissioner must consider whether the public interest in granting the waiver or reduction outweighs the public interest in maintaining the prohibition and must also consider the factors set out in the Act.
Under the Conflict of Interest Act, the Conflict of Interest and Ethics Commissioner is required to administer the Act and apply its conflict of interest compliance provisions to public office holders. The Commissioner has the mandate to determine the measures necessary to avoid conflicts of interest and to determine whether a contravention of the Act occurred. Section 29 of the Act provides that in the determination of the appropriate measures, the Commissioner shall try to achieve agreement with public office holders. Once compliance measures have been taken, reporting public office holders' summary statements and public declarations are posted in the public registry. Section 43 of the Act stipulates that the Commissioner provides confidential advice to the prime minister, as well as to individual public office holders, on the application of the Act.
In a significant change from the previous regime, section 44 of the Conflict of Interest Act permits parliamentarians to request, based on a belief on reasonable grounds, that the Commissioner examine any possible contravention of the Act by a current or former public office holder. The Commissioner may consider information from the public or brought to her or his attention by a member of the Senate or the House of Commons that suggests a public office holder has not complied with the Act.
Section 45 of the Conflict of Interest Act permits the Commissioner to examine a matter on her or his own initiative when there is reason to believe that a current or former public office holder has contravened the Act. The Commissioner must provide the affected public office holder with a reasonable opportunity to present his or her views before submitting a report.
The Commissioner may summon witnesses and compel them to give evidence or to produce documents.
The Senate has, in the Senate Ethics Officer, its own conflict of interest watchdog. This office has been the subject of some debate over the years.
When the establishment of a parliamentary conflict of interest regime was initially considered in the 1990s, thought was given to having only one ethics officer for both houses of Parliament. In 1997, the Special Joint Committee on a Code of Conduct of the Senate and the House of Commons recommended the establishment of a single commissioner to administer the code of conduct and conflict of interest regime for members of both the Senate and the House of Commons.21 Although the Committee's recommendations were not implemented at the time, they were tabled by the government in 2002 for reconsideration by both chambers.
The Standing Senate Committee on Rules, Procedures and the Rights of Parliament, which was called upon to look into the matter, objected to the creation of a single commissioner. Asserting the Senate's independence from the House of Commons and the government, as well as its separate constitutional role and function, the Committee requested that the Senate have its own ethics officer.22
Echoing these demands, a legislative proposal introduced in 2003 provided for the establishment of two positions: a Senate Ethics Officer, who would be responsible for the administration of the conflict of interest regime for Senators, and an Ethics Commissioner, who would be responsible for the conflict of interest regimes for members of the House of Commons and public office holders.23 This legislative proposal, as discussed above, was enacted in 2004.24
Despite the creation of a separate ethics officer for each house of Parliament in 2004, the government introduced, in 2006 and 2009, further bills aimed at abolishing the position of the Senate Ethics Officer and implementing a single conflict of interest regime for members of both houses of Parliament. In 2006, the Federal Accountability Act as originally introduced would have abolished the position of Senate Ethics Officer and transferred his or her duties to the yet-to-be-created position of Conflict of Interest and Ethics Commissioner. This portion of the bill was, however, amended by the Senate, and the Federal Accountability Act, as enacted, made no change to the office of the Senate Ethics Officer. In 2009, the government introduced Bill C-30, the Senate Ethics Act,25 with the same purpose. That bill died on the Order Paper with the December 2009 prorogation.
The Senate Ethics Officer performs the duties and functions assigned by the Conflict of Interest Code for Senators (Senators' Code). In short, he or she administers the confidential disclosure regime and the public registry of senators' public disclosure summaries, provides senators with opinions and advice with respect to their obligations under the Senators' Code, and may be called upon to inquire into possible breaches of the Senators' Code.
Under the 2004 amendments to the Parliament of Canada Act, the Senate was called upon to establish a conflict of interest code for senators, and the report of the Standing Committee on Rules, Procedures and the Rights of Parliament recommending such a code was adopted by the Senate in May 2005.26
The Senators' Code and the Members' Code are identical in some regards and similar in many others. One distinctive feature of the Senators' Code is the role played by the Standing Committee on Conflict of Interest for Senators, to which the Senate Ethics Officer reports after an inquiry and which may be called upon to conduct its own investigation on a matter. In 2015, this committee was renamed the Standing Committee on Ethics and Conflict of Interest for Senators.
Since its adoption, the Senators' Code has been substantially amended a few times: twice when the Standing Committee on Conflict of Interest for Senators completed the mandated periodic comprehensive review of its provisions in 2008 and 2012, and twice in 2014.27 Additional amendments have since been proposed, but they have not been adopted by the Senate.28 In June 2024, the Senate adopted the report of the Standing Committee on Ethics and Conflict of Interest for Senators, which recommends certain amendments to section 35 of the Senators' Code dealing with the appointment of members of that committee.29
The Canadian conflict of interest regime has evolved considerably since the promulgation of prime minister Pierre Elliott Trudeau's first guidelines on conflict of interest in 1973. Conflict of interest rules are now embodied in legislation, including the Conflict of Interest Act, and in formal orders of both houses of Parliament, namely the Conflict of Interest Code for Senators and the Conflict of Interest Code for Members of the House of Commons. Moreover, whereas rules were once interpreted and administered by the Ethics Counsellor, who had no independent status and reported directly to the prime minister, two independent officers, the Senate Ethics Officer and the Conflict of Interest and Ethics Commissioner, are now entrusted with the administration of conflict of interest rules and are required to report to Parliament.
The Conflict of Interest Act provides for one review five years after the coming into force of its section 67, and the House of Commons Standing Committee on Access to Information, Privacy and Ethics conducted this review in 2013.30 Section 33 of the Members' Code and section 68 of the Senators' Code provide that the Standing Committee on Procedure and House Affairs and the Standing Committee on Ethics and Conflict of Interest for Senators, respectively, shall conduct a comprehensive review of the provisions of these codes every five years. Consequently, the federal conflict of interest regime has the capacity to be adjusted and improved with time.
(704 KB, 34 pages), 2006. [ Return to text ] (3.35 MB, 70 pages), Eleventh Report, June 2022. That report was adopted by the House of Commons on 30 March 2023. [ Return to text ] (3.40 MB, 36 pages), June 2024, p. 6. [ Return to text ]© Library of Parliament