2011 Legislative Session: Fourth Session, 39th Parliament
SELECT STANDING COMMITTEE ON PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS
MINUTES AND HANSARD
SELECT STANDING COMMITTEE ON PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS
Wednesday, May 2, 2012
Douglas Fir Committee Room
Parliament Buildings, Victoria, B.C.
Present: Colin Hansen, MLA (Chair); Harry Lali, MLA (Deputy Chair); Donna Barnett, MLA; Bill Bennett, MLA; Jagrup Brar, MLA; Murray Coell, MLA; Mike Farnworth, MLA; Randy Hawes, MLA; Jenny Wai Ching Kwan, MLA; Norm Letnick, MLA
1. The Chair called the Committee to order at 10:38 a.m.
2. The Conflict of Interest Commissioner, Paul Fraser, Q.C., briefed the Committee on the Members’ Conflict of Interest Act, and answered Members’ questions.
3. Resolved, that the Committee meet in-camera to review its timeline and workplan. (R. Hawes, MLA)
4. The Committee met in-camera from 11:53 a.m. to 12:00 p.m.
5. The Committee adjourned to the call of the Chair at 12:00 p.m.
|Colin Hansen, MLA
The following electronic version is for informational purposes only.
The printed version remains the official version.
WEDNESDAY, MAY 2, 2012
Issue No. 5
ISSN 1703-2474 (Print)
ISSN 1703-2482 (Online)
Briefing: Members' Conflict of Interest Act
* Colin Hansen (Vancouver-Quilchena BC Liberal)
* Harry Lali (Fraser-Nicola NDP)
* Donna Barnett (Cariboo-Chilcotin BC Liberal)
* Bill Bennett (Kootenay East BC Liberal)
* Jagrup Brar (Surrey-Fleetwood NDP)
* Murray Coell (Saanich North and the Islands BC Liberal)
* Mike Farnworth (Port Coquitlam NDP)
* Randy Hawes (Abbotsford-Mission BC Liberal)
* Jenny Wai Ching Kwan (Vancouver–Mount Pleasant NDP)
* Norm Letnick (Kelowna–Lake Country BC Liberal)
* denotes member present
Byron Plant (Committee Research Analyst)
Paul Fraser (Conflict of Interest Commissioner)
WEDNESDAY, MAY 2, 2012
The committee met at 10:38 a.m.
[C. Hansen in the chair.]
C. Hansen (Chair): I will call the meeting to order and welcome Commissioner Paul Fraser and his staff to the meeting. Perhaps, Commissioner, you would like to start by introducing the staff that are with you and then proceed into your presentation.
Conflict of Interest Act
P. Fraser: I do want to introduce two members of our staff. On my left is Alyne Mochan, who is the legal officer for the staff. She, like me, toils part-time in our office.
On my right is our executive coordinator, Daphne Thompson, who is our only full-time employee and who is tired of me referring to her as the institutional memory of the office. She is perhaps the most attractive and the most pleasant institutional memory you could ever meet and is very helpful to all of us. Daphne has been in the office since about 1995. She has really got knowledge of everything that has gone on in the course of most of the 20 years that the office has been in existence.
I'm very pleased to be here today, Mr. Chairman and Members. I'm delighted that the committee has chosen to take up this responsibility. I'm very pleased to have the opportunity to provide to you some basic information that we have collected over many months — and indeed, the last few years — in anticipation of an opportunity to discuss potential changes to the conflict-of-interest act.
As you all know, the act itself doesn't have a provision within it to review its contents. That has resulted, I suppose, in any potential review and any discussion around it being left to this particular committee, in its wisdom and in its jurisdiction. As you know from all of the material, the last time this committee dealt with this subject was in the period 1997 to 1999, and the committee's report and the issues that defined that report are, I'm told, information that you have.
If I may say so, looking at the report and looking at the issues that were identified for the committee, it's to some extent melancholy that all of those issues remain on foot and have not been resolved or better defined in any legislation here in this province. On the other hand, the treatment of those issues, the report itself and the material that supports the report is at a very high standard.
Having, as we all have, seen reports such as that in many forms before, I essentially salute the people who were involved in that first round. For us, at least, their discussion has been a good point of departure in terms of the work that we've done.
I don't want it to sound like either an invocation or an incantation, but I thought, just to sort of focus my thoughts, I might repeat to you and read to you a quote that I came upon recently from James Madison, one of the authors of the American constitution, who had this to say about it more than 200 years ago:
"It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.
"In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions."
That quote, it seems to me, captures fairly the reason why we have conflict-of-interest legislation in this country. One of the signposts along the way is that British Columbia was a leader in the conflict-of-interest legislative scheme that has now spread across the country so that today all of the provinces, all three of the territories and the federal government itself actually have legislation — legislation that is independently administered.
The federal government, surprisingly, was the last to actually come into the fold. Their legislation, which is, not surprisingly, the most substantial, if you like, is only about five years old. British Columbia was second behind Ontario in the advent of conflict-of-interest legislation in the early '90s. All of the other provinces and the territories have fallen into line.
That has spawned — for our purposes, in terms of informing us all — the legislation that currently exists and how it might be changed, based on practice that has grown up now across the country. It's a bit like a major league baseball schedule in the sense that we've got 13 different franchises, so there are a host of different provisions, as you've seen in the material that you've got.
Nevertheless, the ability to be able to learn from the differing practices and from the differing principles that are on foot has informed our work going forward. It has put us in a situation where we can come to you in a way that I hope will be graphic, understandable and helpful, and will be able to indicate where British Columbia stands, relatively speaking, in the various provisions, schemes, ideas that are, on foot and in practice, independently supervised across the country.
To that end, what we've done is prepared for you today a document which is, hopefully, not going to intimidate you by its size, understanding all of the other work that you have to do. The document, which has been circulated, has about 18 pages of text, and the balance of the pages up to the end are all supporting documents. Some of you may have had an opportunity to read it; some not.
What it does, or what it purports to try to do, is iden-
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tify for you, for what it's worth…. We well understand the responsibility that you have and that the responsibility that we have is separate and sovereign. It will give us an opportunity to mention four, at least, of the larger, broader issues that have been around for awhile in this whole area. It helped to document for you where those issues stand at the moment.
All of those issues are set out in the overview, which is at page 1 of the material, which I'll go through very quickly with you. As you can see, these are, arguably, from our point of view, four of the larger issues that have been around for awhile. If we remember what was said in the 1999 report, they were around then. They were discussed. That discussion can continue now, with the benefit of ten years and more experience since then.
The first is what we call the purpose statement or the ethical conduct component. The issue is whether or not the act should be expanded to include a purpose statement that deals with conduct beyond conflict of interest — that is to say, ethical conduct. While it's difficult for members of the public sometimes to embrace, there's a difference between an issue that is giving rise to conflict-of-interest concerns and an interest which is ethical.
It's easy, at first impression, to assume that they are one and the same thing. The reality is that they're not. There can be a conflict-of-interest issue that really has nothing to do with ethics, although there is no question that ethics are always around us, hopefully, in terms of the integrity which we have to bring to the work that we do.
There can be very discrete, very isolated instances of conflict of interest that can occur on the basis that there's been no unethical conduct at all but rather that we're in a situation where, for any number of different reasons, the private interest of the member suddenly appears to be in conflict with the public responsibility that the member has.
I don't want to spend much more time on that, because there's going to be a lot of material that you're going to see in that arena. The issue that the committee will have to decide is the same issue that confronted the committee 12 years ago as to whether or not that so-called ethics-and-purpose clause should be enshrined in the act — either in the preamble of the act, as it is in some jurisdictions, or in the body of the act as a substantive provision.
Secondly, the issue that we raise is this whole question of plenary jurisdiction. By that we mean whether the office should continue to have as its jurisdictional base a complaint-driven process that does not involve the commissioner taking the initiative to go out and investigate situations that have not been brought to his or her attention.
The information that's contained in the material that we'll be reviewing in a moment will show you that across the country experience differs there. Some provinces have bestowed plenary jurisdiction on the commissioner; some provinces have not. There are philosophical reasons that can be discussed and are discussed in the material that's been provided.
Understand that from our point of view, we do not want to have the committee put in a position where it has to effectively resist the recommendations that the Conflict of Interest Commissioner may be pleased to make. I don't want you to be in that situation. I think the best that we can and should do is to simply give you information, give you advice in terms of what that information means and how the practice has been going, and then leave it to you to decide how that information will be dealt with.
Of course we'll respond to any questions you may have, but we do not for a moment think that our function is to somehow make a variety of recommendations which you can either accept or reject. You shouldn't have to be responsible, in the position that you occupy, for making a decision as to whether you agree with me or not. Your decision presumably should be made on the basis of what you think is appropriate, based on the best advice and information that can be put before you.
The third issue broadly is the question of applicability. Should the act apply, as it does now, only to members, or should it cast its net much more broadly and embrace any number of other players in our system? Ministers and members obviously are and should be embraced by the act. But what are called, in other jurisdictions, public office holders may be an expansion that this province, in your view, should undertake. In that respect, we're talking typically about deputy ministers, senior government officials, ministerial assistants, CEOs of Crown corporations. As you'll see, in other jurisdictions those people have been put into the various legislative frameworks.
Finally, post-employment matters. What happens when people leave this place? The discussion around that has largely, I think, proceeded on the basis — if I may say so — that it's very difficult for people to decide to enter public life. In the system that we have, which requires disclosure, which effectively is an invasion of privacy voluntarily done…. In those circumstances people who have entered public life pay not just the price that is involved in doing the work and balancing that with life interests and family and so on, but it puts them in a situation where, when they leave office and want to return to private life…. Are we making it too difficult, or is it not difficult enough in terms of the information that has been accumulated as a person has served in the House?
All of these issues, I think, are well known to all of us. It's a matter, I hope, of simply making sure that we put before you a body of work that has been accumulated from across the country, which speaks to that issue.
Conveniently for us, there is an organization of people who do the work that we do across the country. We meet once a year. The last such meeting was held in Victoria in September of last year. In the course of our hosting the
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conference, what we were careful to do — hoping, frankly, that this day would come — was make sure that we had conversations around all the issues that we thought were important and garnered the views of commissioners in terms of their own experience.
The profit in all of that has been that we've been able to accumulate a body of work here which I hope will help to inform you. We have a larger document that has been underway for several months now, which I hope we will be able to deliver to the committee again as simply information and research material that may obviate the necessity of replicating the work that has already easily been done in our office. That much larger document will have all of the footnotes and all of the references that I think will make it easy to go to the source and check it out.
I've had a conversation with Brett Plant before this started, and he is now aware of what's at least in our draft index and, I'm sure, will share that with you. It's our attempt to basically inform rather than, at this stage, attempt to persuade. Obviously, when we engage, that will be a useful exercise for all of us.
C. Hansen (Chair): If I can just interject. This is the document. The table of contents that has been circulated to members at the start of this meeting is the document the commissioner is referring to. This is just to give us a sense of the material that will be coming in that more fulsome document.
P. Fraser: There will be no shortage of detail. It's reminiscent of the story of Will Rogers who decided in World War I that he had an answer to the submarine problem in the North Atlantic.
He insisted upon having an audience with the chiefs of staff. When they agreed, he said to them that his answer to the fact that the submarines were picking off the vessels that were going from the United States to Europe with a variety of provisions by the U-boats was to heat the North Atlantic to the boiling point. At that stage the submarines would all have to surface, and they could easily be picked off by the better air force that the Americans had. Of course, inevitably the question was, "How can we possibly do that?" and his answer was: "Listen. I am a man of big ideas. I leave the details to you." Lest you worry that we had that in mind, there's going to be a lot of detail along the way.
On page 2 — we're going to move more quickly than that would seem to indicate — you'll see that there is a comparative spreadsheet from across the country, on the four large areas that I've mentioned. For example, with respect to the so-called purpose clause you can see that nine jurisdictions do have it and five don't across the country. British Columbia is one that does not.
On the second question about plenary jurisdiction and whether the commissioner can investigate on his own initiative, it's more evenly split — six give the commissioner that jurisdiction; eight don't.
On the issue of whether or not there should be jurisdiction over public office holders, six of the jurisdictions do that and eight do not. British Columbia's line, as you can see, is blank right across the top on all of those, for reasons that I think are historically explicable and may still be valuable today. But that is the situation across the country.
M. Farnworth: Other public office holders — is that local government?
P. Fraser: No, sorry. That is anything but local government. Public office holders, described in Canada, are reporting public officers and non-reporting public officers. They are always members of the House, etc., but they also include a variety of other people — including, down the chain, CEOs of corporations, OIC appointments, and so on.
M. Farnworth: Okay.
P. Fraser: The post-employment column — you'll see that that's blank. The reason for that is that it's very difficult to put in one narrow column and synthesize quickly all of the experience that's going on across the country. But we'll come to that a little more particularly down the road here.
Moving through the general purpose and the ethics clause provisions on pages 3 and 4, you'll see that there is a reference to the discussions that were held by this committee in 1997 through 1999 that included witnesses who included former Commissioner Hughes and Commissioner Oliver.
Commissioner Hughes noted, putting it shortly, that "Conflict of interest is a matter of ethics, but not all matters of ethics relate to conflict of interest."
There are a variety of ethics clauses across the country. They're summarized in bullet form on page 1. Former Commissioner Hughes, when asked what kind of provision — he was in favour of there being an ethics provision within the act — he would prefer, indicated, and this is the top of page 4, that he preferred what was the then government of Canada provision that was part of a direction from the Prime Minister to his ethics commissioner. That was that "public office holders shall act with honesty and uphold the highest ethical standards so that public confidence and trust in the integrity, objectivity, and impartiality of government are conserved and enhanced."
Interestingly, of course, at that point in the federal government's experience there was no independent process. The Prime Minister simply had an ethics adviser, and the ethics adviser gave advice to the Prime Minister with respect to a code of conduct, very much the same process as obtained
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in British Columbia in the Vander Zalm days — very much the same process as we saw the situation arise where Mr. Vander Zalm's issue around Fantasy Gardens had to do with whether or not he had violated that code.
That particular selection by former Commissioner Hughes is, I think, one of the more valuable suggestions, if I may put it that way, for an intelligible, relatively brief provision that deals with ethical standards.
We go on to record the fact that then Commissioner Oliver indicated to the committee that he agreed that there should be such a provision, and he had his own version of what that would look like. That is appended to this paper in appendix 1, page 9. In the end what happened was that the committee did not embrace that notion, and the reasons for that are bulleted on the page. Geoff Plant was a member of the committee. You will see at pages 21 and 22 of the committee's report that his considered view was embraced by the committee as the reasons it gave, ultimately, for not deciding to put in such a clause.
I think it was President Kennedy who said that the basis of effective government is public confidence. There are some who would argue that the public is hard-pressed to have confidence in a regime that doesn't include a declared ethical imperative. That is part of the argument.
Some people, I think quite properly, would — taking Geoff's point of view, which is synthesized in these three bullets — say, "Well, that's very interesting, but we're talking now, potentially, about ethical conduct that is very difficult to define," or it could be — sort of like catching a cloud with a mitt. You don't really know whether what's seen as conduct that's ethical by one person will be shared by another. A good example of that, just as a reference point, occurred in the Northwest Territories, where the Premier of the day established a relationship with the Clerk of the House.
Both were married to other people, and the relationship was extant for a period of time until it was finally revealed.
A complaint was made under the act that the Premier was in breach of the conflict-of-interest provisions of the Northwest Territories. As you will see when we come to the spreadsheet, the Northwest Territories had and has in its legislation a so-called integrity clause. The commissioner of conflicts in the Northwest Territories had the matter referred to him and made a decision.
You'll see quickly, looking at page 5 of this document, that under the Northwest Territories, the details of their clause, the legislation says that we have to promote public confidence and trust, preventing conflicts from arising. Well, the commissioner did due diligence and investigated. In the end he had to construe the legislation in the Northwest Territories, and this is what he said.
He found, incidentally, that the conduct did amount to a breach of the act there. He discussed the whole issue of how properly statutes that involve references to ethical conduct should be interpreted. He said this, ultimately…. I quote this only because of what it represents for me, having looked at this now two or three times and waffled, frankly, on where my own personal views would go if it were for me to decide.
He said this: "I have concluded that the mischief which the section…seeks to avoid is not limited to improper financial manipulations." That was the sort of threshold argument that was made to him — that if there aren't financial implications to the conduct, then that's the end of it. You can't go further, and you can't effectively become the moral arbiter of somebody's conduct.
He said: "I'm satisfied that the legislation isn't limited to improper financial manipulations but includes conduct of an ethical nature if that conduct impairs public confidence and trust in the integrity, objectivity or impartiality of the member. Any other interpretation would render the section…superfluous, in my view."
He goes on to say: "The act is not intended as a code for moral conduct. In my view, there must be a nexus between the conduct in question and the member's obligations to the Legislative Assembly and its proper functioning."
With great respect, I agree with those comments, which, it seems to me, are sensible, understandable and set the parameters that can make such a clause, if you like, interpretable.
That's a contribution, perhaps, to the discussion, to those who would say, as Geoff Plant did, that we don't really want to have a situation where we use language that's fuzzy, language which is open-ended — that language which is a matter of statutory interpretation makes things more difficult rather than less difficult and more unclear rather than clear.
I think that will be one of your larger responsibilities, but I thought it was important, Mr. Chair, to quote to you — not harkening back to the way I used to make my living — the words of a commissioner who is still serving that deal with an issue that is a very tough one.
The various provisions are summarized as briefly as we can — to fit them into the borders that have been created — in the spreadsheet at page 5. To review again, we've got three provinces that have the purpose or ethics clauses in them. Those three provinces have reference to it in the preamble. Six of the jurisdictions, including Canada, have an actual section within the code itself which deals with the subject.
There are some sort of knock-on effects that are, I guess, cosmetic, but they're also descriptive. They're at page 6, so if this kind of a clause comes in, the appropriate way to describe the work that one does under a conflict-of-interest regime changes, to some extent, and should perhaps fairly be described in the title of both the act and of the commissioner who administers it.
Moving on now to page 7 and the plenary jurisdiction. As a point of reference, of course, we have officers of the
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Legislature in this province who have plenary jurisdiction. That is to say that they can sniff the air and make their own decision as to whether or not they will investigate. Some of those people are the Auditor General, the Ombudsperson, the Privacy Commissioner, and there are others that I won't bother going into.
In British Columbia I have no plenary jurisdiction. There are perhaps a number of reasons why. It's all, to some extent, quite interconnected. British Columbia, as we'll see by a spreadsheet later on, is one of only three provinces in the country where the public has access to our complaint-driven process. The other two provinces are Alberta and New Brunswick. In every other jurisdiction, including Canada, the public has no entree into the process.
One assumes, to sort of round the circle, that the ability of the public to ask for an opinion or to complain makes it more likely that if there is anything going on, the constituency of people who can come and complain will be almost unlimited.
Almost inevitably, part of that argument goes, if something is happening, the commissioner is going to find out about it not because he's sniffed the air and done it himself but because it's come to him by way of a complaint — typically, from the unlimited public arena. That may be one of the reasons why the legislation reads today as it does.
There's one minor correction that I'll just ask those of you who are keeping notes to make. There's a mistake on page 7 in respect of the Canadian code. The reference is section 27(7). It should be subsections 27(1) through (4).
I think it's important for us, speaking parenthetically, in this area to say this. As we all know, the early history of the administration of the Conflict of Interest Act resulted in frequent skirmishes involving members complaining about members. I think that was inevitable, and certainly it happened.
In the last 2½ years there hasn't been a single complaint filed by a member with respect to another member. The complaints that we're dealing with typically are all coming from members of the public. I don't know what we're to make of that. I like, in a high-sounding way, joining James Madison, to have the view that we're giving decent advice that's being followed.
As all of you know, the advice that we give is, for the most part, given privately and confidentially, and people are following the advice. That assumes that the advice is any good, in the process.
P. Fraser: There had to be a non-partisan moment here, and that clearly was one of them.
In any event, the trend is not a trend that I do anything except welcome. I think, frankly, what it means is that we've got a system that appears to be working in terms of its early warning capability. I said publicly and say again that I'm absolutely confident that members are utilizing the availability of the office to discuss steps that might be taken before they take them and to satisfy themselves, as they want to be satisfied, that whatever they do in the conduct of their private and public lives is done by people of conscience.
Anyway, that's just an interesting trend, an interesting statistic that I pass on.
The spreadsheet on page 9 gives you the list of those provinces that, as I've mentioned, give access to the public and those that give the commissioner the right to investigate on his own.
Moving now quickly to 3, the public office holders. The discussion really started in British Columbia, I think, at the 1999 hearings of this committee. The reference in the 1995-96 annual report was made by then Commissioner Hughes, in which he said that senior officials, in his view, were often confronted with ethical dilemmas and potential conflict-of-interest situations.
He thought, therefore, that it was axiomatic that they should be covered under the provisions of the act. He referred particularly, as the quote there indicates, to political exempt staff in the Office of the Premier and ministers and to deputy ministers, those who rank at that level usually by virtue of order in government. It goes on to say that these are the people that have access to extremely confidential information, etc.
This isn't an easy subject. It's not an easy subject to undertake when you talk about, if you like, legislative freedom in terms of the administration of the Legislature's will by deputy ministers and other people who take their instruction from ministers who have ministerial responsibility. To what extent, when you involve those people, are you impinging on that? These are issues that are complex and worthy of our attention, as are issues that surround what happens to these same people when they leave office and the extent to which the legislation could or should follow them into private life.
The Canadian legislation is the most comprehensive because, frankly, it's the most recent. The Canadian legislation is noted at the bottom of page 11 of the presentation, and there are an endless variety of links and things there which can inform our discussion about that.
On the bottom of page 11 and the top of page 12 is the definition of who the public office holders are and who the reporting public office holders are, which I attempted to give a little earlier.
The spreadsheet is at page 13, and you'll see that there are more provinces, more jurisdictions that don't have or don't take jurisdiction over public office holders than do.
Finally, post-employment matters. There is a spreadsheet on page 18 which gives you a synthesis of what happens across the country. The various cooling-off periods that are displayed there would indicate to you that the two years we have here is at the very top end of what's in
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play elsewhere. For Alberta that should read six months to a year. Quebec is two years, and some people are subject to a two-year limit federally.
I should also tell you that the most recent iteration of conflict-of-interest legislation in the country came in the province of Quebec only last fall — as a consequence, I suppose, of the scandal that has surrounded the construction industry there. The Quebec legislation is very comprehensive. It's very interesting to read and no doubt will be referred to you in the course of your work.
In the various jurisdictions there are issues about whether or not…. I identify what I think are the main issues that are necessary to be addressed to modernize this whole area. The first is if there's going to be a cooling-off period, should it not follow that there has to be an ability to monitor compliance? None exists at the moment.
The next issue — as part of that, I suppose — is whether there should be some machinery to enforce compliance and, finally, whether these provisions, in respect of post-employment, should in law be extended to embrace former members.
At the moment under our legislation, former members are simply not caught, in the sense that if they breach the act, the remedy is for them to be charged, and they wind up in Provincial Court as an offence under the act. Otherwise, there is no consequence. Except if there has been a breach that affects or involves the executive council, then members of the executive council and the council itself can be held to have breached the act, and there are consequences there. But there are no consequences visited upon the person who's actually leaving office.
As part of all of that discussion, we've given you some of the choices that other people have made. The Oliphant Commission delivered its report in late 2010. The issue there was the extent to which former Prime Minister Mulroney had, in his dealings with Karlheinz Schreiber, potentially offended the legislation, which didn't exist then but which exists now.
The inquiry invited comments. The Canadian commissioner, the Ontario commissioner and myself were invited to speak to our differing respective regimes. The report that was produced, and the references are here for you to look at, was quite comprehensive.
The issue basically was when you leave public office — in this case, as Prime Minister — can you be seen to be making the kinds of financial arrangements and business contacts that, it was insisted by Karlheinz Schreiber, had been made here? And the extent to which there should be any consequences if that conduct is found to have happened.
The report's recommendations have not, so far as I know, been accepted, but they're there, and they deal with what the regime potentially could look like in circumstances such as were presented before it.
The whole issue of how you monitor and how you enforce is also discussed in the paper in some little detail. Also, we've raised, finally, the question of what, in comparative terms, the value is of the experience, for example, that we have in England. Some of you, I think, have heard me speak about this before, but they have a kind of peer-review system that's in play.
When a person who's leaving public life and wishes to take up a responsibility can have the comfort of knowing on a peer review that the work they intend to do is appropriately considered by the peer-review committee, then that makes a difference. It makes a difference in terms of helping the member understand what reasonable and objective people have to say about doing that sort of work, post–public life. It's also transparent in terms of the public's understanding of what those discussions have been.
Gomery admired that process but stopped short of recommending it, saying that he felt that there should be a process, but it couldn't be a process that would be two-headed — both the Conflict of Interest Commissioner and the peer-review process — and he preferred the Conflict of Interest Commissioner to take that jurisdiction.
That's where that discussion sits, and it is, I suppose, interesting. But it represents, from our point of view, the very latest comment on that subject, so that's why I brought it forward.
Anyway, I think I've intruded a little bit on the time that you generously gave me, Mr. Chair, so I'll stop now.
C. Hansen (Chair): Thank you. We'll now throw it open to questions.
J. Kwan: I'm curious. In terms of other jurisdictions, are there any that have extended the application of their conflict-of-interest act into the area of local government?
P. Fraser: I'm going to ask Alyne to tell you that.
A. Mochan: Not that I'm aware of.
P. Fraser: It should be said that former Commissioner Hughes recommended that way back in, I think, 1995 or '96. It also should be said that that was the year he left office. So if the recommendation had been accepted — that the office would deal with all municipal issues — someone else would have had to deal with it. The subject has not surfaced formally since then.
R. Hawes: Commissioner, having listened to Geoff Plant for a number of years in a legislative review committee talking about purpose clauses and his absolute…. Anyone who brought a purpose clause did so at their own peril. I'll put it that way.
His thinking was that the legislation should be clear enough that you don't need a purpose clause. Clearly, I'm not sure if you're looking at it that way. I know you're not
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making re-recommendations, but would you agree with that point that Geoff Plant has made many times?
P. Fraser: I think the point — which is at page 21, for those of you making notes of the committee's report — says exactly that. He says, "The incorporation of a general integrity clause…would not satisfy this basic requirement of good legislation" — which is that you need to let those who are being regulated know with certainty what they are or what they're not allowed to do.
Just to be fair to all of the comments he made, he went on to say:
"While there is undoubtedly broad agreement about the core elements of ethical behaviour, there is often vigorous disagreement about the application of principles of ethics to particular cases. Such disagreements are perfectly appropriate in the political realm. But it is unwise to create legally enforceable sanctions for behaviour the propriety of which is a matter of disagreement" — which, I think, is just putting your point in the words he exactly used.
"Legislating a broadly worded requirement to act with integrity would create more, rather than less, certainty about what conduct is or is not permitted. For this reason, a general integrity clause would likely not enhance either the actual integrity of members or the public's perception of integrity. A commissioner given the power to sanction members who, in his or her view, have simply acted 'unethically' would eventually become little more than an unprincipled arbiter of good legislative conduct."
Then he goes on.
I have to say that that submission, which he prepared for the committee, carried the day, and I find it to be a valuable contribution to the debate. One of the reasons, frankly, that I troubled you to listen to what Commissioner Gerrand had to say was to try to put to the test how such a clause could be interpreted in a way that was manageable. I believe that Commissioner Gerrand, in the words that he used, did just that. That's the other side of it.
I confess to you that, at first impression, I was quite convinced by what Mr. Plant had had to say, with respect. I'm now of the view that I'd like to think about that some more. Certainly, as a contribution to the debate, it's very helpful.
J. Brar: Thanks, first of all, for the presentation and for the very well done research materials you have sent to us. That's very useful to understand the issue and the complexity around the issue.
P. Fraser: Thank you for that, on behalf of Alyne. She's responsible.
J. Brar: In my past life I've been a student of philosophy. Under what I read, one of the subjects was ethics. Based on that, I really like the "ethical conduct," but I don't like it at the same time. Let me tell you why.
My key question is: can we really define "ethical conduct" with clarity and with objectivity? That's the question here before we make it a part of the legislation.
I went through the material, and there are three examples mentioned in the material given here. One of them is the definition "expectation of ethical conduct" in Alberta. The other one is "uphold highest standards." The third one is "shape the truth" and "keep their word."
All of those definitions are so open to so many interpretations and subjectivity that, in my opinion, it's very hard to define clear rules to investigate something related to something like that and come up with a kind of conclusion that will be satisfactory to the public.
The committee in 1999 — on page 4, in the main three bullets…. I think you mentioned that. The last bullet I would like to identify here and then ask you a question. It says: "Legislating a broadly worded requirement to act with integrity would create more, rather than less, certainty about what…is or is not permitted." That's what they said.
Having said that, I want to ask you. From your experience, is it possible to clearly define "ethical conduct" and put it in the legislation? Then, is it possible to implement that in a way that is respectable and understandable to the public?
P. Fraser: That's a very good question. It anticipates the concern that everyone would have in thoughtfully considering this issue about ethics, either as mentioned in the preamble or substantively. I mean, let's be blunt about it. You, looking at such a provision, would want to, if you could, have some kind of if not guarantee then certainly guidance as to how it would be interpreted.
That's why I chose to give you the example from one of the commissioners, who has said: "This is how I interpret those words." We don't live in a stare decisis world in conflict of interest. The $5 legal expression is that what other people have done, if it's any good, should continue to be what you do so that there is certainty, and the rule of law will triumph.
You can't be sure that the next Conflict of Interest Commissioner is going to make the same interpretive decision or that it's not going to be in direct conflict with what other people, other places have done, even though, albeit, the language may be slightly different.
The dilemma is one that I clearly understand. If that dilemma cannot be overcome and solved, then I think the default position is the one that was articulated by Geoff Plant. That, perhaps, was part of the reason why it carried the day.
How, then, could there be a guarantee built into the act that would somehow make sure that the interpretation was within defined limits and didn't, as people have expressed as a concern might happen, put the commissioner in the role of a moral arbiter? How do you do that? I'm thinking about that. I'm convinced that there's a way for the committee to have a discussion along those lines.
I'm not in a position today to tell you how I think that could be solved. I think this discussion is helpful in terms
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of what the alternatives are and what the buy-in is if you embrace language which — again, to speak plainly — is what many people, if asked on the street, would expect is already in the act, because it seems to be apple pie and seems to be so obvious. The problem, as so often is the case, is trying to decide what the language, properly interpreted, should mean.
C. Hansen (Chair): Actually, on that subject, I take it you're going to come back to us with some more precise recommendations with regard to that particular subject area.
P. Fraser: Yes, sir. I think that's something we will do and hope that the committee finds it useful. We'll do it in the context of presenting various doors that could be opened without, hopefully, putting you in a situation where you have to disagree with us, if you choose to.
J. Brar: I think it will be helpful for us if we have some clear recommendations or options. To review that and understand that would be really helpful.
C. Hansen (Chair): I've got Harry and Bill, and unless there are pressing questions beyond that, then I think we should probably move on.
H. Lali (Deputy Chair): I want to follow up on Jenny's question about municipal officers, why or why not they would be included in the conflict act. Specifically, you read about reports from various municipal jurisdictions across the province now and then where there are allegations by members of the public or other councillors against mayors, etc., and back and forth — that somehow there is a conflict of interest. You often find that in newspapers and media stories.
Occasionally an item goes to court. Specifically, there was an issue of three councillors who accused the mayor of Merritt about a dozen years ago of having a conflict of interest, and the case went to court. It was fairly high-profile, obviously, in the Merritt and the Kamloops area. To the mayor's satisfaction, she was actually acquitted by the judge of having no wrongdoing at that time. This was about a dozen years ago.
I'm thinking that these kinds of issues end up going to court, and that's basically the only way to resolve them one way or another, or for a person to clear their name. What are your thoughts in terms of the question that Jenny asked? What do you think in terms of including municipal officers under the conflict-of-interest law?
P. Fraser: As a supplement to what you've just said in terms of the anecdotal experience, we get calls every day in the office, and many of them have to do with areas of jurisdiction which we don't enjoy. I think I'm right in saying, and Daphne can correct me, that as a segment of those, calls about municipal conflict-of-interest problems are the largest in number. I think that's right.
P. Fraser: Has been. Is that not so anymore? It's been tailing off.
D. Thompson: Yeah, more of a variety….
P. Fraser: Anyway, it's on the public's mind as well. I'm just confirming what you've said.
There are, of course, conflict-of-interest provisions in a variety of bits and pieces of provincial legislation that govern municipalities. I'm not, frankly, up to speed on exactly what the situation is, and I know the UBCM has its own views in respect of all of this.
I think, Mr. Lali, that the problem we have with it is not philosophical but is entirely practical. That is, if we were to take on that jurisdiction, I know that the existing office couldn't possibly handle it. I think we would wind up in a remote place, having to deal with a very large staff with a multitude of complaints.
That isn't to say that because, for practical reasons, it doesn't work in our world, there shouldn't be attention paid to how this problem — and it is a problem — is solved and how our citizens are satisfied that they are having some independent oversight with respect to conflict of interest. It's not necessary, as it was in the Merritt case, to have the matter adjudicated in court. There should be an intermediate step that could be taken.
That one's live and on foot, and it's important. The infrastructure that would be required for that would be monumental, in my view.
It may be that that sort of administration could occur in a more practical way on a regional basis somehow. It may be that people who are in that universe should be encouraged to come up with their own suggestions — there may be some; I haven't seen them — as to how the subject may be handled.
That's about all I'm able to say, other than the problem exists. I acknowledge it exists, and it's worthy of discussion.
B. Bennett: Two points I want to raise. The first one deals, actually, not with the conflict-of-interest act but with other legislation that deals with the conduct of members around their constituencies and the funds they receive for work in their constituencies — travel and all that sort of thing.
Have you looked at that other legislation in terms of how it might relate to the conflict-of-interest act?
P. Fraser: The short answer to that would be that I haven't looked at it in a way that was considerable enough
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to be able to contribute to the discussion at this point on that subject. The only reference that we have in British Columbia to what in Ontario is referred to as legislative convention, I think, is the provision in the act which says that the conduct of members should not be viewed as a breach of the act if it's conduct that is what members appropriately do on behalf of their constituents. That's the only reference directly in the act to what is on the periphery of what you're discussing or what you're mentioning.
The short answer to your question is no, I haven't.
B. Bennett: I might talk to you off line about that, just in case there are things to be learned from that other legislation or even possibly moving some things from other legislation into this legislation. I won't belabour that, because neither one of us are…. I haven't read it in a few years either. There are at least two other pieces of legislation that have some items in it that are relevant to this.
Anyways, the second thing I wanted to leave with you in relation to the next time you come back is that with respect to the general integrity clause, from a personal point of view I'm not interested in having a preamble to any piece of legislation. I think the question as to whether or not we ought to have something in legislation — in my view, anyways — depends on the extent to which it has been useful across the country where they have the provision and also the extent to which it's been revealed that they wish they had had the provision.
We would have to know how often it has been used in other jurisdictions. You gave us one example from the Northwest Territories where it sounded like it was quite useful. There wasn't any prescriptive piece in the legislation that would have enabled the commissioner there to have dealt with that situation, as I understand it. There may be other information from the other commissioners across the country that they can relate to us that would show that actually there is a need for this in places where they don't have it.
That's more work for you, but if it's possible to contact commissioners and get that sort of information, I think that would be really useful in terms of determining whether we need this sort of a provision or not.
P. Fraser: Just very quickly, Mr. Chair, two things. One, I think I can safely say there has not been a surfeit of problems that have arisen. When I say problems, there haven't been a number of cases that have come forward where people are alleging breaches of legislation based on either a breach of a clause that's actually in the legislation or the preamble. There's a dearth of it, in fact, which is interesting. I'll come up with the actual data for you.
The other part, very briefly, because it is important…. One of the things that is difficult for people, for all of us, is when we have a piece of legislation, the conflict-of-interest act, that does not specifically within it refer to other legislation which is in existence provincially and which has an effect on the conduct of members of the Legislature relative to payments they may be receiving or could receive from the government.
Those other provisions are contained in sections 25 through 27 of the Constitution Act, which — and this has been part of the earlier discussions — may be or perhaps should be referred to in the conflict-of-interest act and incorporated by reference and equally with respect to section 5 of the Financial Disclosure Act, which seeks to define what, under that act, amounts effectively to control of any private corporations that have to be disclosed under our legislation.
I think people should be able to find in one act all of the provisions that touch them, rather than having to have the ingenuity or the advice to go looking elsewhere.
B. Bennett: That was my point in the first point. I remember in the first term being here, trying to figure out what the rules were around how you use the money that's given to you in allowances. There were at least three pieces of legislation that dealt with that, and it was very complicated trying to figure out what the duties are. I would go so far as to say that most MLAs don't actually know what the rules are.
C. Hansen (Chair): I think we have to draw this to a close very quickly, but Jagrup has one very short point.
J. Brar: Just one quick question about the early disclosure. I was reading here one of the principles articulated by the OECD, which clearly anticipates disclosures occurring before receipt of any firm offers or acceptance of these offers.
I understand when it applies to people under the post-employment situation, but will it also apply to the elected officials who are actually serving at this point in time that they have to disclose at that stage to the commissioner that this is happening? Like, sometimes people who are in office here find employment, and they leave. Is there an expectation that this will be applied to them as well?
P. Fraser: Well, the latest example of it in Canada was when Minister Prentice got an offer, which he ultimately accepted, to become the vice-chair of the Canadian Imperial Bank of Commerce. He, in compliance with the federal legislation, went to the Conflict of Interest Commissioner, who disclosed that he'd received what is referred to in their legislation as a firm offer.
So he complied. The commissioner decided, obviously, that it was appropriate for him to accept that kind of employment, and he did. But he went through the process. That's really the only the real-life example of that legislation working that I can provide you with.
C. Hansen (Chair): Okay. Well, thank you very much. I think we have to draw this to a close at this point. I want to thank the commissioner for joining us today, and also
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his staff. I'm sure we'll have an opportunity to pursue further questions with you in the future as we proceed with our deliberations.
I think from here we will go in camera to deal with some of the administrative matters that are on the table. A motion to go in camera?
R. Hawes: So moved.
The committee continued in camera at 11:53 a.m. to 12 noon.
The committee adjourned at 12 noon.
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