Stuart G.
Stratton was appointed Conflict of Interest Commissioner of New Brunswick in
February 2000.
In 1978, the New Brunswick
Government enacted one of the first Conflict of Interest Acts in Canada. The
purpose of that Act was to assist legislative members, and others, to avoid an
actual or apparent conflict of interest. In addition to Members of the
Legislature and Cabinet Ministers, the Act applied as well to Deputy Ministers,
executive staff members and heads of Crown Corporations. That Act required all
of these people to make full disclosure of assets and liabilities by filing a
sworn declaration with a designated Judge of the Court of Queen’s Bench. In
March 1999, following a review by the Legislative Administration Committee, a
new Members’ Conflict of Interest Act was adopted. This article is a slightly
edited version of the first Bulletin of the new Commissioner appointed under
that Act. The article was sent to all members of the New Brunswick Legislative
Assembly in May 2000 and is available on the web site of the New Brunswick
Legislative Assembly.
In response to what has been
described as an unprecedented level of cynicism and lack of trust in
politicians, revisions have been made to most of the Conflict of Interest Acts
in Canada in an effort to put into place a regime that will better avoid
conflict of interest situations. Several of the revised acts, like the one in
New Brunswick, now have application to Members only and provide for the
appointment of an independent Commissioner from outside government or the
courts (in some instances referred to as Ethics Commissioners) to administer
the Act.
The events leading up to the
enactment of the new Members’ Conflict of Interest Act are of some
interest. In 1997, the Government of New Brunswick retained the Honourable
William L.M. Creaghan, a retired Judge of the Court of Queen’s Bench, to review
comparable conflict legislation in other provinces and to consult with those
affected by the provisions of our legislation. In June of 1997, Justice
Creaghan produced a report entitled “Review and Recommendations of William L.M.
Creaghan on the New Brunswick Conflict of Interest Act.”
Following receipt of Justice
Creaghan’s Report, the Legislative Assembly referred the report to the
Legislative Administration Committee. After a year of meetings and discussions,
that Committee produced a report of its own dated December 18, 1998, which
recommended that a new Conflict of Interest Act be enacted. Following
receipt of this latter report, the Legislative Assembly of New Brunswick
enacted the Members’ Conflict of Interest Act on March 12, 1999.
The Act has since been proclaimed to be in effect as of May 1, 2000.
When introducing the new Members’
Conflict of Interest Act in the New Brunswick Legislature on March 9, 1999
the then Minister of Justice said:
“The proposed new Members’ Conflict of
Interest Act provides a set of guidelines to govern the conduct of Members
of the Legislative Assembly in conflict of interest situations. Processes
related to compliance with the standards include the appointment of a Conflict
of Interest Commissioner, the provision of advice by the Commissioner, private
disclosure statements, and enforcement by the Legislative Assembly. The Act
also prohibits former ministers from engaging in certain activities related to
contracts and benefits during the 12-month period after leaving office; this is
enforceable through the courts.
The proposal implements the recommendations of
the Legislative Administration Committee of the Legislative Assembly resulting
from the Committee’s consideration of Justice William Creaghan’s 1997 review of
the Act.”
Since my appointment to the
Office of Commissioner, I have read several statements concerning the purpose
behind the enactment of Conflict of Interest Acts and Conflict Codes.
Let me quote what some authors have said about the purpose of the new
legislation.
“The purpose of conflict of interest statutes is
to set out acceptable standards of conduct for elected officials in order to
ensure that the private interests of these individuals do not come into
conflict with the performance of their public duties.”
“The basic principle of \the New Brunswick] Act
is that Members of the Legislative Assembly must not allow their private
financial interests to influence the conduct of public business.”
“The primary purpose of integrity legislation is
not to promote high ethical standards among Members, all of whom we expect,
having chosen to aspire to public office, possess the necessary moral qualities
which entitles them to be referred to as the “Honourable Member” in the
Legislature. Rather, it is a standard against which an ever-increasingly
cynical and suspicious press and public may measure their behaviour in office.
It may not appease the more rabid critics, but it will serve as a source of
satisfaction to the Member whose conduct is under attack to know that it meets
the standard by which his peers are also judged.”
There are Conflict of Interest
Statutes in nine of the provinces of Canada, the Yukon, and the Northwest
Territories. A Conflict of Interest Act for the new territory of Nunavut
is under study. In addition, many of the provisions contained in the New
Brunswick legislation are patterned upon the Revised Acts in Ontario, Alberta
and British Columbia.
The Office of Conflict of
Interest Commissioner
The Office of the Conflict of
Interest Commissioner opened on May 1, 2000. The Commission is located in the
former Office of the Lieutenant-Governor in Edgecombe House at 736 King
Street. The office has been established as a part-time position with
part-time clerical assistance provided by the staff in the Legislative Assembly
Office.
One of the most important
functions assigned to the Commissioner under the Act relates to the
provision of advice. Section 29 of the Act authorizes the Commissioner to
give advice and recommendations of general application to Members or former
Members respecting their obligations under the Act.
Section 30 of the Act goes even
further. That section permits a Member or former Member to seek the written
advice of the Commissioner on any matter respecting the Member’s obligations under
the Act. If a Member provides all relevant details to the Commissioner and
follows the advice of the Commissioner, that Member is protected from any
actions under the Act relating to the matter in question.
Please note too that, pursuant
to subsection 30(3), the advice and recommendations of the Commissioner are
confidential until released by the Member or former Member or with his or her
consent.
Selected Sections of the Act
To comply with the requirements
of the Act, Members should learn all of its provisions. I would, however,
highlight the following provisions:
Section 4 sets out the general
intent of the Act. That intent is to prevent conflicts from arising
between the execution of a Member’s official duties and responsibilities and
his or her private interests.
Section 8 pertains to gifts.
Subsection 8(1) states that a Member shall not accept a fee, gift or personal
benefit that is “connected directly or indirectly with the performance of the
Member’s duties of office.” But note that this restriction does not apply in
respect of gifts or personal benefits that are received “as an incident of the
protocol or social obligation that normally accompany the responsibilities of
office.” When, however, these latter types of gifts or benefits exceed
$250.00 in value, or the total received from any one source exceed this value,
the Member must file a “Gift Disclosure Statement” with me without delay
indicating “the nature of the gift or personal benefit, its’ source and the
circumstances under which it was given and accepted.”
Section 13 sets out what must be
done when a Member has reasonable grounds to believe that he or she has a
conflict of interest in a matter that is before the Assembly or the Executive
Council or a Committee of either of them. The Member must disclose the general
nature of the conflict of interest and withdraw from the meeting without voting
or participating in consideration of the matter.
Section 18 requires each Member
of the Legislature to file an annual “Private Disclosure Statement.” The
disclosure statement must contain a statement of the nature of the assets,
liabilities and financial and business interests of the Member, the Member’s
spouse and minor children and of private corporations controlled by any of
them. A Member must also disclose “any salary, financial assistance or other
benefit the Member has received from a Registered Political Party or Registered
District Association.”
Under subsection 18(5) of the
Act, certain items need not be disclosed in the Private Disclosure Statement.
These items include the Member’s primary residence, primary recreational
property, automobiles owned or controlled, items of domestic, household or
personal use or ownership, including cash, non-convertible bonds, trust and
bank certificates, registered retirement savings plans which are not
self-administered and any property placed in a blind trust.
Subsection 18(6) mandates that
after a Private Disclosure Statement has been filed with me, I must consult
with the Member and the Member’s spouse, if available, to ensure that adequate
disclosure has been made and to provide advice on the Member’s obligations
under the Act.
Subsection 18(7) should also be
noted. If there is a change in the assets, liabilities or financial or business
interests of a Member of his or her spouse and minor children, or any private
corporation controlled by any of them which would reasonably be expected to
have a significant effect on the information previously disclosed, the Member
must file with me a “Statement of Material Change” within thirty (30) days of
any such change.
Another section of the Act that
I would like to bring to your attention is section 20. That section requires me
to prepare a “Public Disclosure Statement” which shall, subject to some
exceptions, “state the source and nature, but not the value of the assets,
liabilities, and financial and business interests” of each Member as well as
“any salary, financial assistance or other benefit the Member has received from
a registered political party or a registered district association during the
preceding twelve months” and any gift or benefit that has been disclosed.
But as I noted, there are
exceptions to what must be disclosed in the Commissioner’s “Public Disclosure
Statement.” These include:
·
any asset or liability worth less than $2500.00;
·
any interest in a pension plan, employee benefit plan, annuity or
life insurance policy;
·
any interest in an open-ended mutual fund that has broadly based
investments not limited to one industry or one sector of the economy;
·
any other asset, liability or financial or business interest that
the Commissioner approves for exclusion.
The Act requires each Member to
file a Private Disclosure Statement with the Commissioner within sixty days
after becoming a member of the Assembly, and in each subsequent year at the
time specified by the Commissioner. Should a Member fail to file a Private
Disclosure Statement within the period of time prescribed by the Act, I must,
subsequent to one written reminder, inform the Speaker of the Member’s default.
The Speaker must then table my report before the Assembly.
Subsection 41(1) provides that
the failure to file a Private Disclosure Statement, a Gift Disclosure Statement
or a Statement of Material Change within the time provided by the Act can lead
to serious consequences including a reprimand, a monetary penalty, suspension
from the Assembly or expulsion.
Other provisions of the Act
provide that Members may not:
(i) use insider
information to their benefit;
(ii) use the influence of their office to obtain a decision to
further their private interests;
(iii) be a party to a contract with the Crown under which the
Member receives a benefit;
(iv) be employed by the Crown in right of Canada or in right of
New Brunswick.
In addition, Members of the Executive
Council must not:
(i) engage in any
employment or in the practice of a profession;
(ii) carry on a business;
(iii) hold or trade in securities, stocks, futures or commodities;
(iv) hold an office or directorship, unless holding the office or directorship
is one of the Member’s duties as a member of the Executive Council.
Investigation and Inquiries
Under section 36 of the Act “Any
Person” may request an investigation into allegations of a breach of the Act.
Such requests must be in the form of an affidavit setting out the grounds and
the nature of the alleged breach. In addition, the Assembly may, by resolution,
request that I investigate an alleged breach of the Act by a Member.
On receipt of a request for an
investigation, the Commissioner must review the matter and decide whether or
not there is jurisdiction under the Act. If there is jurisdiction, the
Commissioner must then decide whether to conduct an investigation with or
without conducting a formal inquiry. The Member against whom an allegation is
made must be given reasonable notice of any investigation and be given an
opportunity to respond to the allegation.
If the Commissioner is of the
opinion that the request is frivolous, vexatious or not made in good faith, or
that there are no grounds or insufficient grounds for an investigation, the
Commissioner may refuse to conduct an investigation, or may cease the
investigation.
Following an investigation, the
Commissioner’s Report is filed with the Speaker who must lay the Report before
the Assembly. The Assembly may either accept or reject the findings of the
Commissioner or substitute its own findings and may vary the recommended
sanction or impose no sanction. The sanctions that may be recommended range
from a reprimand to expulsion from the House. The Commissioner may also
recommend no sanction if the breach that occurred was trivial or committed
through inadvertence or an error in judgment made in good faith.
Finally, please let me emphasize
the obvious. This is a new Act that I have been referring to. In addition, the
new forms we have had to prepare to carry forward the provisions of the Act
have not yet been tested by experience. Anything new can be a matter of concern
to those who must comply with the Act and to those of us who must administer
it. My objective will be to assist Members in any way I can to ensure that they
avoid any conflict of interest as they go about their daily duties and
responsibilities as Members of the Legislative Assembly of New Brunswick.
The Commonwealth and the New Generation
Canadian Parliamentary Review, Volume 24
no 2, 2001
by Victoria Kellett
A graduate of the University of Ottawa, Victoria Kellett is
presently working for the Occupational Health and Safety Agency of Health
Canada.
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Of the 1.7 billion individuals living in
Commonwealth countries more than half are under 21 years of age. The
future of the Commonwealth is very much in the hands of this New Generation. In
recognition of this fact the Federal Branch of the Commonwealth Parliamentary
Association marked its annual Commonwealth Day dinner by inviting Canada’s
representative to the Commonwealth Youth Programme as guest speaker. This
article, based on her address to about 100 parliamentarians and diplomats,
suggests that the Commonwealth is still an ideal vehicle for youth from around
the world to broaden their knowledge and open their minds to new cultural
experiences.
My initiation into the
Commonwealth came about through a request to high schools by the National
Student Commonwealth Forum (NSCF) to submit applicants to attend their yearly
Forum. At the time, my experience of the Commonwealth was limited and my
knowledge extended only as far as I knew that athletes competed in the
Commonwealth Games. One of my teachers mentioned that students from across
Canada were meeting in Ottawa under the auspices of the Forum, and when he
suggested that some of us might wish to participate, quite a number of students
sought the limited spots. Many of our teachers were impressed by our enthusiasm
in competing to attend this Forum, however I think they would have been
dismayed to realize that we viewed it as mainly a way to miss school, even if
only for a short while. Eight years later I am still associated with the
Commonwealth, and I look back at that opportunity as a defining moment in my
life.
The aim of the National Student
Commonwealth Forum is the education of young people with respect to the
Commonwealth. The Forum, which has been held annually since 1973, allows young
people from every region in Canada to learn about international issues, meet
with Senators, MPs, High Commissioners, personnel from Foreign Affairs, and
representatives from the media. Each delegation represents a country in the
Commonwealth and is prepared throughout the week with the necessary tools to
adequately represent the interests of their respective countries. The week
culminates with a mock Commonwealth Heads of Government meeting in which the
students endeavour to reach consensus on various issues. The Forum is run by
students, for students with the Royal Commonwealth Society providing some
guidance. I began my association with the Forum first as a delegate and then as
a member of the planning team. I eventually co-chaired the 25th Forum.
When I first joined the Forum I
worked in many different capacities. Our committee took innovation in the
program to a new height – or depth – when for the first time we entered a float
in the Santa Claus Parade a few years ago. With the innocence of novices we did
not realize all this entailed and it required frantic all night decorating
efforts and much coercion to persuade a local farmer to lend us his wagon. I
think the parade marshals would have preferred that we had not tried so hard
because as we drove up to the assembly point the whole load fell off. However,
we took our places nonetheless, wedged somewhere between the Carpentry
Association of Ottawa and the Volunteer Medics. I am not sure if that was fluke
or by design. However, it must have gone over well in the end because we were
invited back the next year. We quit while we were ahead. Even though our
inexperience must have been obvious, I could not help but be struck by the
encouragement we were given to try something new. To take an idea and see it
through and then to debrief after and work out for ourselves what improvements
could have been made was an important learning process.
One of the most important and
for me personally rewarding aspects of the week was the incredible support given
the Forum by parliamentarians. One of the most profound impressions left upon
everyone was the opportunity for the students not only to meet with their MPs
and High Commissioners, but also the opportunity to speak in the Senate. People
who accuse contemporary youth of being politically indifferent should have been
a fly on the wall of the Senate when these students debated the issues of the
day with intensity and growing confidence.
In a federal system, it is particularly apt that young people
from the farthest reaches of Canada come to the Nation’s capital to discuss
issues that ultimately affect their lives and those of their communities. Many
students returned to their homes with a new zeal to bring the principles of the
Commonwealth into their educational background.
Involvement with the
Commonwealth sparked an urge to travel and one of the first places I travelled
to was the Commonwealth Secretariat in London. The ability for me as a young
person to access individuals who are responsible for implementing change was
profound and it was a meeting that I will not soon forget. This visit
reinforced my desire to become more involved in the Commonwealth and soon after
I began to travel quite extensively. Looking back I realize that the training
provided by being a part of the Forum and then my extensive travelling prepared
me well for my present role as Canadian representative to the Commonwealth
Youth Program (CYP).
The purpose of the Commonwealth
Youth Program is to promote the Commonwealth values of international
co-operation, social justice, democracy and human rights among young people in
the Commonwealth. It achieves this through the participation of youth at
regional meetings, having youth representatives at the Ministerial Table, and
at the Youth Minister’s Meeting. The recommendations we put forth directly
affect government policy.
Every three years existing
strategies are examined and new ones developed. For the past three years, the
CYP strategies have focused on Youth Empowerment, Human Resources Development
and National Youth Policies. For many countries, these issues are very topical
and they are struggling to ensure that youth are being given the opportunity
for a sustainable future. Canada has been in the fortunate position to have
already adopted many measures that positively affect youth, and is not
experiencing the same growing pains as some fellow Commonwealth members.
However, this poses its own challenge. Given that Canada is a major contributor
to the program, I must draw upon our experiences while emphasizing areas where
we also need further development.
The Commonwealth remained part
of my education in the broadest sense. It invoked in me a desire to explore the
way in which countries interact on the international scene and the hope and
examples the Commonwealth provides on civilized resolution of disputes. Perhaps
that prompted me to pursue a post graduate diploma in International Peace and
Conflict Studies from the University of Waterloo. We have certainly seen our
fair share of conflict within the Commonwealth, its disturbing effect on youth
and indeed in some cases, their involuntary participation as soldiers in
warfare. Indeed I became aware of the combination of youth and conflict on two
occasions. The first occurred during a trip to Italy where I witnessed NATO
troops preparing for humanitarian action in Kosovo. One night, while watching
CNN, I caught an interview where the youngest members of the U.S. military were
being asked what it was like to be on their first mission and to explain what
their role was. A youth no more than 18, responded that he was there to find
the enemy and kill them. While the situation of Kosovo necessitated military
action, I could not but reflect on the value of an organization devoted to
dialogue and political sporting and cultural exchange. The whole purpose of the
Commonwealth is to resolve situations before they get that far. With this
year’s theme, and with the strategies put forward by the CYP, I can only hope
that the recommendations we put forward will have some resonance.
The second occasion where such
conflict was brought home to me was on a recent trip to the Solomon Islands for
a Commonwealth Youth Minister’s Meeting (CYMM). While studying at Waterloo, I
understood the material provided and I recognized that conflict does happen.
What I was not prepared for was to have my academic year complimented so nicely
by first hand experience of international conflict. The venue for the CYMM, a
triennial meeting, was to be Honiara, Solomon Islands. Give the distance, I
chose Fiji as a stopover and since my academic year was over I was able to
arrange a prolonged stay upon the completion of my meetings in Honiara. Less
that 24 hours after arriving in Fiji, George Speight swept into Parliament
taking Prime Minister Chowdhury and his Cabinet hostage. Within hours, the
military took action, imposing road blocks between Nadi and Suva (the two main
cities on the island) and a curfew. Communication was cut off and contact with
the outside world was impossible. Not only was I not able to apprise my family
of the situation, I now had no way of getting a flight to the Solomon Islands
as without a pass I could not leave my hotel.
Reading newspaper articles when
I returned to Canada I realized that they did not have a full account of what
had really been going on. By their accounts it was a fairly benign coup. But I
saw something different. I saw individual ethnic groups being targeted, homes
burned, livelihoods being destroyed, people too terrified to leave their homes,
children being kept back from school, looting, burning churches, and always the
presence of armed individuals. Without an Embassy or even a consulate the
information that would trickle back to most Western countries was diluted. I
did manage to obtain a pass to get around curfew and was eventually able to
negotiate a flight to the Solomon Islands, but other delegations were prevented
from leaving their hotels and did not arrive in Honiara until the meeting was
almost concluded.
We had been warned prior to
leaving Canada that the Solomon Islands had experienced ethnic tension for
decades and we were well aware of the travel advisories. Having left Fiji and
the coup behind me, I now had to prepare myself for perhaps more of the same.
While the hospitality and warmth extended to us was remarkable, the ethnic
tension and the trickling effect of the coup in Fiji was obvious. We were
unable to venture beyond certain points and while we were there several
beheadings occurred less than a minute from our accommodations. We also knew
that while we had extensive security, should the ethnic tension escalate, our
security personnel would disappear. They could not afford to take sides.
Indeed, we had no sooner become accustomed to their presence everywhere, when
our security disappeared altogether one day while we were sitting in
Parliament. The unease in the room was palpable as we remembered Fiji. The
Government of the Solomon Islands however, worked very hard with both groups
engaged in the conflict to ensure that nothing happened during that week. With
54 Ministers present it would have caused a significant international incident.
The Solomon Islands experienced their own coup less than a week later.
We accomplished much during our
week in Honiara. I think we all realized the importance of what we were doing
as we watched armed youth struggling amongst themselves for the few resources
available. As we worked toward recommending micro-credit initiatives, fostering
links between private and public sectors, ways to empower youth, encouraging
the use of sport for both mental and physical well-being, educating youth about
HIV/AIDS and the incorporation of a stronger youth voice in government, we
could not help but be aware that these steps were key to decreasing conflict.
There is nothing normal about teenagers being armed.
Having returned to Canada
safely, I continued with my role. The CYP is not only about travelling and
representing a country on an international scale. It is also about
communicating with Canadian youth. It is a constant dialogue, one that is
challenging given Canada’s regional differences. It is about disseminating
information and in turn learning what drives youth, what they feel is important
to their future and what role they would like to play in it. My term will end
far too quickly but I know that I have come too far to leave the Commonwealth
behind. I am encouraged by the talent that is out there, and by the commitment
of other youth such as Alicia Kennedy and David Lynch (this year’s co-chairs of
the NSCF), to take on the challenge of educating other youth. I commend their
efforts.
The point I would like to leave
with you tonight is that the support of parliamentarians and others emboldened me
to get involved. When young people are encouraged to explore new frontiers and
approach challenges in different ways, you are giving us something tremendously
valuable. You are showing your faith in our abilities and your pride in our
accomplishments. As someone who has benefited enormously from this support I am
strongly committed to doing my part to see that it comes full circle.