At the time this article was
written Gregory Evans was Integrity Commissioner in Ontario. Wayne Mitchell was
Commissioner of Members’ Interests in Newfoundland. Robert Clark was Ethics
Commissioner in Alberta. Ted Hughes was Commissioner of Conflict of Interest in
British Columbia. Derril McLeod was the Conflicts Commissioner in Saskatchewan.
In October 1995 the Special
Joint Committee on Code of Conduct for Parliamentarians heard testimony from
five provincial officials responsible for this area in their respective
legislatures. The following is a condensed version of presentations to these
Gregory Evans (Ontario): The Members’ Integrity Act of
1994 was proclaimed on October 6, 1995. The Integrity Act replaces
the Members’ Conflict of Interest Act, which was proclaimed on September
1, 1988. Both acts apply to all members of the legislature, with certain
additional specific sections applicable to members of the executive and former
members. I have been the Commissioner since the first act was introduced. The
purpose in the change of name was to accentuate the positive and to eliminate
the negative connotation that seems to be associated with the term
"conflict of interest". It also reflects an increased jurisdiction.
We are concerned with more than
economic matters. The legislation deals with personal conduct and with customs
and procedures that have developed in the Ontario legislature over the years
and that we have designated as Ontario parliamentary conventions.
Examples of these conventions
include the prohibition against the members of the executive appearing as
advocates or supporters before any provincial agency, board or commission under
their particular jurisdiction. There is a prohibition also against all members
and staff from communicating with members of the judiciary with respect to
matters before the courts and from contacting court officials or police
officials with respect to matters involving the discharge of their official
Legislation of this type usually
includes a preamble. It is a motherhood statement setting out certain broad
principles for the members in carrying out their responsibilities and a
declaration by the legislature of the reasons for enacting the statute, which
may be helpful in the interpretation of any ambiguities that may exist in the
The two principles that should be
paramount in all aspects of parliamentary government are openness and fairness.
While the fostering of personal interest in a socially acceptable manner is a
perfectly natural right that an individual is entitled to exercise, the problem
arises when the right of one individual impinges upon that of another. The
competing rights create a confrontation, which in everyday life is usually
settled by mutual agreement of the parties or by consensual arbitration or by a
judicial decision. This is not a conflict of interest position or situation in
the accepted sense, because there is no ethical issue involved and no questions
of morality arise.
However, when a person is elected
or appointed to public office, that person becomes a trustee for the interests
of others, and their interests may conflict with the private interests of the
member. When that situation arises, the ethical member will resolve it in a
manner favourable to the public interest, not because there is legislation but
for the reason that his or her conscience, shaped by training, education and
life experience, will direct a member to do that which is morally correct.
No administrative rules or
legislative codes of conduct are required to monitor the conduct of an
honourable member, nor will they restrict the misbehaviour of the member who
lacks the requisite moral integrity.
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 that entitle them to be referred to as honourable
members in the legislature or in Parliament. Rather it is a standard against
which the 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.
Members, whether appointed to the
Senate or elected to the Commons, are in a position of trust. They represent
the public and should expect to be held accountable for their actions.
Accountability requires openness, and with it the right to investigate and to
recommend penalties for violations of the public trust. (Gregory Evans)
There is no quantifiable evidence
that the level of public corruption has either risen or fallen in recent years.
However, to believe it does not exist is not only to deny history but to
overlook the many allegations of misconduct at all levels of government and the
not infrequent convictions in the criminal courts when corruption has been
detected and prosecuted.
Government is big business, and
like any other large corporation it requires a statement of corporate values or
accepted conduct with an independent officer whose duty it is to make sure the
walk matches the talk. Nice words without accountability no longer satisfy the
public. A survey in the United States reported in the August 24, 1993 issue of The
Globe and Mail that 20% of the 1,000 largest industrial and service
corporations in the United States have an ethics officer.
Today’s focus on ethics has its
roots in the time when the United States defence industry was besieged with
claims of fraud and overcharging the government. Insider trading scandals in
stocks in Canada and the United States gave further impetus to the desire for
ethical codes and legislation. Today it is a growth industry, and it is a fair
assumption that there would not be growth if the need did not exist.
I do not believe that governments
in the present climate of public opinion can long delay the implementation of
stringent rules of ethical conduct for their members. In what form will these
rules be set out – a written code, a set of guidelines or a statute where right
and wrong is clearly defined?
For governments, in my opinion, a
legislative enactment is the best method of achieving the desired result, which
is public trust in those whose servants the members are. One of the advantages
of legislation is that it is available for consideration by those aspiring to
public office before they seek a nomination. They know what they are getting
Whom should the legislation cover?
I do not think senators and members of the House of Commons should be
considered as subject to identical legislation. Many sections could be
applicable to both, but these are separate and distinct branches of government.
Their entrance to government is different: appointment as opposed to election.
The terms of office are different. Tenure is determined by different standards.
The same penalties may not be applicable. They are separate and independent
bodies with different responsibilities.
That does not mean a good part of
the legislation could not be made applicable to members of both Houses, in the
same way as our legislation distinguishes between members of the executive, the
ordinary members and former members of the legislature.
A question that is frequently asked
is: why should government backbenchers and opposition members be subject to
many of the same restrictions as members of the executive council? That is a
question that has always arisen because the people who were there when the
legislation was passed are not necessarily the same people who come in and go
to confession to me after the next election. I have to say, "well, while
you were not there, you could have inquired and found out what it was all
Government backbenchers and
opposition members should not be subject to the same restrictions as members of
the executive, but I think they should be subject to restrictions. The short
answer that they are members of Parliament and any misconduct in which they may
be involved reflects not only on the individual but also on his or her
political party and on the institution of Parliament.
It is Parliament, irrespective of
the political stripe of the governing party, to which the public criticism and
mistrust is directed. It is true that your own constituents know who you are
and know your political affiliation, but when you move a couple of counties
away, they’re never sure just who you are. So when there is a comment about a
member of the legislature, a member of Parliament or a member of the Senate,
forget about the individual. It is just Parliament, Senate or government that
is to be criticized.
Backbenchers also serve on
committees and as chairpersons of committees to which proposed legislation is
referred. They have the opportunity to provide considerable input and draft
legislation. In the discharge of their duties to their constituents and the
public generally, they are in contact with many government agencies, boards,
and commissions, advocating for funding for various organizations. One would be
naive not to appreciate that they are frequently targets of lobbyists seeking
to advance a client’s interest.
The question of whether spouses should
be required to disclose has been a matter of some concern. Spouses,
particularly women, say "My husband was elected. I am not the member and I
do not see why my privacy should be invaded." As far as I am concerned, in
Ontario we do not require a spouse to appear personally for disclosure. But we
do expect the member to have a general knowledge of spousal assets and
liabilities. It would be important to know what the family assets comprise if
the member is virtually bankrupt, according to his disclosure, and the family
lifestyle is far removed from the poverty level.
If the spouse does not wish to
inform the member, I note when filling out the public disclosure statement that
information as to the spouse’s assets is not available. When this appears in the
public press, the curious neighbours assume the spouse has a Swiss bank
account, a yacht in Fort Lauderdale and a condo at Whistler. The next year
invariably full details are provided by the spouse.
Who should be a commissioner? I
believe the commissioner should be appointed by a resolution of the House of
Commons. I am appointed by a resolution of the legislative assembly, and there
are half a dozen members in that so-called select group. You have the
provincial auditor, the ombudsman, elections finance, the privacy commissioner
and the environment commissioner.
Such a process does provide for the
independence necessary to discharge the duties of the office. The appointment
should be for a minimum of five years, so you overlap one election with the
next one. Appointment should be subject to renewal.
There is no reason why a member of
the public service, appointed by a resolution of the House of Commons, would
not be suitable for that position. I think you could take him out of where he
is and put him in with a little more authority and visibly more independence.
D. Wayne Mitchell (Newfoundland): One of the early actions taken by the
Liberal administration of Clyde Wells after the general election of May 3,
1993, was to pass new legislation governing conflict of interest for members of
the House of Assembly and ministers of the Crown. This legislation replaced
conflict of interest ministers’ guidelines that had been in place since 1982.
The conflict of interest statutory
framework for elected provincial representatives in Newfoundland and Labrador
specifies standards of conduct for members and ministers to prevent furthering
of private interest for themselves and their families from public office, and
the appointment of an independent commissioner with powers to adjudicate
members’ compliance under the act, conduct inquiries and recommend penalties
for non-compliance to the House of Assembly. It specifies annual and material
change disclosure to the commissioner of all private interests held by members
and their families. It deals with public disclosure of defined private
interests for members and their families, and it provides for annual reporting
to the House of Assembly on the operation of the act in general and the
commissioner’s office in particular.
Legislated conflict of interest
standards in Newfoundland establish basic requirements to govern elected
representatives in the conduct of their public duties. These standards also
provide an objective means for others to assess the separation of public duties
from private affairs. Specifically, there are prohibitions under our act,
section 22, on influencing decisions;
section 23 deals with the use of insider information;
section 24 deals with accepting gifts or personal benefits;
section 28 deals with the evasion of obligations by sale of interests;
section 32 prohibits contracting with government in certain
section 33 is a general provision dealing with the participation in
decisions that further private interests.
In addition to standards for all
members of the House of Assembly to follow, the Newfoundland legislation
recognizes the sensitivity of ministerial decision-making by requiring, under
section 27, that cabinet ministers refrain from outside business activity;
under section 29, that ministerial action ought not to be influenced by
employment offers; under section 30, that a waiver be granted by the
commissioner for ministers to receive post-employment contracts or benefits
within one year of leaving a government department or agency; and under section
33, that ministers withdraw from departmental or cabinet decision-making that
may benefit their own private interests.
It would seem from public scrutiny,
at least in the jurisdiction I represent, given to ministerial
actions that the rigid adherence to these higher standards of conduct by
ministers is indispensable to fostering public credibility in governmental
Undoubtedly, the most onerous
feature of the Newfoundland conflict of interest legislation is the requirement
under section 36 for disclosure to the commissioner of all private interests by
the member and family. In actual practice, however, the negative reaction about
extensive filing has moderated with each successive annual filing. This may reflect
greater acceptance of the fact that disclosure is a necessary requirement of
serving in public office. It may also suggest a greater appreciation by members
of the mutual benefit to be gained from their periodically focusing attention
on interrelationships between public duties and private interests.
The obligation under the
Newfoundland conflict of interest legislation for complete disclosure of
spousal private interests has been privately criticized by some and publicly
challenged in one instance. There is reference to this in my two annual reports
to the Newfoundland legislature. In this age of individual rights and freedoms,
it is difficult to convince everyone of the need for comprehensive application
of conflict of interest standards to the entire family unit. Nevertheless, a
select committee of the Newfoundland House of Assembly only recently proposed
statutory language to reaffirm coverage of spouses as broadly defined under
paragraph 20(g) of our act.
The public disclosure of private
interest under section 37, which are subject to the exclusions under section
20, allows for a base level of public scrutiny without excessive intrusion into
the private affairs of elected representatives and their families. Members’
public disclosure statements are updated each year. In actual practice there
have been relatively few requests to view the public disclosure statements of
members, but their existence affords the public an opportunity to become
informed so that they can draw reasonable conclusions as to the ethical conduct
of elected representatives.
The creation of a commissioner of
members’ interest as an independent officer of the House of Assembly ensures
accountability under the act. This is achieved through periodic interaction
with members to clarify interrelationships between public office and private
interests and through advice being given on how to avoid conflict of interest
It has not yet been necessary for
me to recommend punitive measures. The tabling of annual reports to the House of
Assembly on the administration of the act keeps the issue of ethics of
provincial elected representatives in the public domain.
The conflict of interest
legislation in Newfoundland only mandates the commissioner to make an objective
determination of members’ conduct in relation to the standards set in the act.
There is no reference in the statute to apparent conflict of interest, as is
the case in some other jurisdictions. While I may make suggestions from time to
time to enhance public perception of ethical activities by elected officials,
it is up to the members themselves to ensure that their actions withstand
It is encouraging to note that
there have been instances where members have imposed higher standards on
themselves and their families than are required by the legislation.
I suggest there must be a
collective effort to achieve ethics in government. This begins with the rigid
adherence by elected representatives to specific standards of conduct, with
their actions at all times being guided by the potential reaction of a
reasonably informed public. It is assisted by the commissioner giving advice to
prevent conflict situations from arising but also having the power to, if
necessary, insist on specific compliance and propose penalties for
Public office must be open and
transparent so that the public has a reasonable opportunity to be informed
about circumstances on which they can then base well-founded judgments.
Robert C. Clark (Alberta): The public disclosure situation in Alberta
is very similar to the situation that my colleague from Newfoundland has
There was initially a considerable
amount of resentment or questioning by some members about the disclosure
documents. It should be pointed out that members in Alberta file a disclosure
document with me in my role as commissioner, and I sit down with the member and
his or her spouse and go over the disclosure document. Following that, a public
disclosure document is prepared. This document is sent to the member. Then the
member has a look at it before it goes to the clerk’s office for public
The document that goes to the
clerk’s office for public disclosure does not deal with the number of shares or
the level of financial commitment a member may have. It would say a member has
shares in this organization or that company, or it would say a member has a
liability at this financial institution or a guarantee at this trust company.
The mere fact that the public can see where the member’s interests are is deemed
to be sufficient.
I also advise members that it is
one thing to pass the test of the legislation, but I caution them to also use
what I call the nose test. Think what you are doing and if you do not mind it
appearing on the front page of the Calgary Herald or the Edmonton
Journal, then it is quite likely all right to do. The nose test goes
somewhat further than the legislation, but I think that advice has served a
number of members reasonably well.
The second point deals with section
41 of our act. It is somewhat unique because a member can come to the
commissioner and point out to the commissioner what the member plans to do with
a particular investment or a particular change in his or her financial
situation. The member can then ask the commissioner to give the member written
direction or written advice on how that matter should be handled in keeping
with the Canada legislation. Once that information is presented to me, I am
bound by the legislation to respond to the member. If all the information
presented to me is complete and a mistake is made in the advice that is given,
it is responsibility that rests on my shoulders.
When I took on this job of
commissioner almost three years ago, I was told by one of the members of the
committee that recommended this approach to the Legislative Assembly of Alberta
that I should strive to be 90% priest and 10% policeman. I found that approach
serves the office well.(Robert Clark)
Let me touch on the approach we use
for reporting. Like my colleague from Newfoundland, we report to the Speaker of
the Assembly and then my reports are dealt with by the Assembly. From the point
of view of budgets and legislative amendments, we report to what is referred to
as a legislative officers’ committee, the same committee that the ombudsman,
the auditor general, the chief electoral officer and the information and
privacy commissioner report to. They deal with our budget. They also deal with
our requests for changes to the legislation and then they go directly to the
legislature on that basis.
Obviously, I think one starts with
the point of view that all members are honourable. Under the legislation, a
member can ask the commissioner to do an investigation of that member’s actions
or of another member’s actions. In a particular case one of the ministers in
the Alberta government asked me to do an investigation of allegations that
centred on that minister. It dealt with the sale of shares in Syncrude Canada
Limited. There were stories in the media that the minister had used her influence
to give inside information to a company that had acquired shares in Syncrude.
This minister’s brother was the president of the company that had acquired the
shares. The minister asked for an investigation. The investigation was done
within a week. I was able to report to the Assembly that not only had the
minister not taken part in that matter or breached the act in any way, but the
member had gone further than was necessary under the act.
The important thing for members to
have understood on that occasion was that the investigation and report
immediately stopped the story. It was no longer a news item. I do not think
there has been any public discussion of the matter since.
Within the last year we had a
situation where a member from the opposition came to us and said, quite
frankly, that he had breached the act. He was a very small businessman. His
company, of which he was a direct associate, had done some work for Public
Works. The member came to me and asked me to do an investigation. That was done.
The member had been very forthright, very upfront about it. The member ended up
paying back the profit he had made on the project to Public Works. The report
went to the House. I indicated that he had breached the act but certainly I
could see no intent. I recommended there be no sanctions.
The bottom line was that there was
one story in the media in Alberta as far as that member was concerned. I think
it served to show that in fact this individual was an honourable member.
E.N. (Ted) Hughes (British Columbia): I became the acting commissioner on
October 1,1990. My appointment was confirmed by a vote of the legislature on
May 23, 1991, for a five-year term. So I have actually been in office now for
in excess of five years.
Our statute covers all members of
the Legislative Assembly. It makes no distinction insofar as its broad coverage
is concerned between members of the executive council and members of the House,
but there are some sections that deal solely with the role and position of
members of cabinet, such as section 8, which deals with the prohibition against
carrying on a business or a profession that would interfere with one’s duties
in the executive offices of government.
I will divide my remarks into two
segments. First, I will talk briefly about the British Columbia experience.
Second, I intend to take a look at where I see the future unfolding in this
area, in that I am now well into my final year as the conflict commissioner for
The three responsibilities I have
are not unlike those that have been outlined today by my colleagues from
Newfoundland and Alberta: first, disclosure; second, an advisory role; and
third, an investigative arm. I will speak briefly about each of those.
Before I do, however, let me say
that the position I hold is a half-time one. I am paid half what the auditor
general, the ombudsman, and the freedom of information or privacy commissioner
are paid. They are the other three officers of the House. That arrangement is
at my suggestion, because this position, time-wise and staff-wise, is not
nearly as onerous as the positions they carry. I think from the important
perspective of the responsibility of the office it is equal to those, but it is
not the hub of activity in government that the other three are, particularly
when, in our jurisdiction, my responsibilities are limited to the elected
members, unlike in Alberta where senior public servants are covered.
As for disclosure, the requirements
are the same for all 75 members. We have a form on which they list their
assets, liabilities and sources of income. There is an accompanying form for
those who have interests in private corporations.
We also have a system in our
jurisdiction where, if a material change takes place in one’s financial status
over the course of the year, one must fill out a form and file that information
with me within 30 days of that change taking place.
I believe I have had the full
cooperation of the members throughout my tenure. Perhaps one reason members
have very willingly participated in their annual meetings with me and in their
completion of the documents is that, differing from some other jurisdictions,
the members are not required to fill out dollar figures insofar as their
ownership of assets is concerned. They have to indicate where they have assets
and what the nature of those assets are, but they have not had to reveal to me
the dollar value of them. I have the opportunity of inquiring, if need be, but
I seldom need to because it is the ownership – not the quantum – of the asset or
the liability that can trigger the conflict. I think the fact that this does
not have to be revealed to me has been partly responsible for the cooperation I
have had. That includes the cooperation regarding spousal participation.
The act requires that I have an
annual meeting with the member and spouse, if available. The first time around
I have insisted on the availability of the spouse. I have been much more lax in
that requirement in my subsequent annual meetings.
My second position is that of
adviser, as my colleague from Alberta mentioned. This procedure is used quite
extensively by members making requests for opinions about certain matters. I
think it is fair to say that the majority of requests come from ministers, but
It is fair to ask what they are
seeking opinions about. The best answer I can give is that they are seeking
assurances that they are not running afoul of the various prohibitions set out
in the Act for something they have in mind.
Chief among those prohibitions is
the one in section 2.1 of the Act which says:
A member shall not exercise an
official power or perform an official duty or function if the member has a
conflict of interest or an apparent conflict of interest.
Preceding that, in the Act, is a
definition of both conflict of interest and apparent conflict of interest.
I believe British Columbia is the
only jurisdiction that has legislated with respect to an apparent conflict of
interest.(E.N. (Ted) Hughes)
That definition was taken by way of
an amendment in 1992, insofar as apparent conflict of interest is concerned,
pretty much from the definition of Chief Justice Parker in the Sinclair Stevens
inquiry that was conducted back in the 1980s.
I have not had a problem with the
apparent conflict of interest section. I think it is controversial among some
of my colleagues. It puts a higher requirement on members insofar as their
performance is concerned, but I think I can say it has worked reasonably well.
Other prohibitions in the act are
against the use of insider information and influencing others in positions of
authority, a prohibition against accepting gifts and benefits, and contracting
with government. Members do write to me in my advisory role requesting advice
in those areas.
The third hat I wear is with
respect to investigative matters. Under the statute, either members of the
legislature or members of the public can file an application for an opinion
with me where they allege there has been a violation of the Act and set forth
the reasonable and probable grounds they have for believing that a violation
has taken place. It then becomes my responsibility, if I believe they have laid
that groundwork, to conduct an investigation and to make a report to the House.
Additionally, if I have found someone in breach of the Act, it is open to me to
recommend a penalty or sanction for the House to take up and impose or not
impose as the House may wish.
I am pleased to be able to say that
in the excess of five years I have been doing this job, I have never had
occasion to recommend that a penalty or a sanction be imposed upon any member.
I think that speaks well in a number of ways. It is not something I would
hesitate to do if I felt the circumstances called for it, but we have been able
to operate the system – notwithstanding a number of inquiries that have taken
place – without that step having to be necessary.
The remaining part of this
presentation deals with what I referred to at the outset as how I see the
future unfolding. I move into that by asking the question of why we have
existing legislation in the provinces and the territories and the regulatory
system in Ottawa for public office holders. Why are these systems in place?
It is my view that a nation is no stronger
than its ethical and moral principles, and the ultimate strength of those
ethical and moral principles is in the hands of those citizens democratically
elected to lead our country in the provinces, the territories and our
municipalities. The cornerstone that underpins sound moral and ethical
principles and values is the integrity, honour and trustworthiness of our
democratically elected officials at all levels of government.
I believe conflict of interest
legislation, which has mushroomed across this country at the provincial level
in the last two to seven years, has been a response to shore up that
cornerstone lest those elected to public office be tempted to put self-interest
ahead of the public good. That has likely also been the motivating factor
behind the existing Ottawa code for public office holders and also the
establishment of this Committee to look at parliamentarians and ministers and
parliamentary secretaries in the elected House of Commons.
The conflict of interest
legislation that has resulted in British Columbia – and I believe elsewhere in
Canada – has been substantially successful in accomplishing what was expected
of it by those legislators who enacted it. Therefore, insofar as matters of
conflict of interest are concerned, I advocate the continuance of it the way it
is, with the requirements as they are, particularly with the availability of
However, what I have come to
realize as I have performed this job over a five-year period is that conflict
of interest is only one aspect, one component if you like, of honour, trust,
integrity and morality in public service. What I believe should occur is for
existing legislation, at least in British Columbia, to embrace the wider gamut
of honour, trust and integrity in public service in the same way as legislation
has embraced the concept of conflict of interest.
It is my present expectation to
file my 1996 annual report early in the new year and to recommend, as I have
alluded to modestly in the past but will do more forcefully in this next
report, the inclusion, in our statute, of sections that are now statutory in
some other parts of the country. For example, in the conflict of interest
legislation of the Northwest Territories, a commission on which my colleague
the Hon. Greg Evans and I have the honour to serve, there is a provision that
says that each member shall:
Perform his or her duties of office
and arrange his or her private affairs in such a manner as to maintain public
confidence and trust in the integrity, objectivity and impartiality of the
Then of course the federal code,
which is administered by federal ethics counsellor Wilson, at the request of
the Prime Minister, has the opening provision 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.
You heard from our colleague the
Hon. Greg Evans on the progress that has been made in Ontario, in that they no
longer have a Conflict of Interest Act but now an Integrity Act. A clause in
the preamble to that statute says: "Members are expected to act with
integrity and impartiality that will bear the closest scrutiny."
I commend my colleague from Ontario
for the leadership he has shown in bringing about these changes with their new
statute. I appreciate that they have moved to include in their statute
"Ontario parliamentary convention". I personally favour the inclusion
of a more definitive statement, like one of those I have just mentioned that
exist in the Northwest Territories and in the Code here. Nonetheless, they all
have moved in the same direction.
If what I advocate were to come to
pass, the British Columbia Act would, like the one in Ontario, have to be
renamed the "Integrity" or "Ethics" Act and the
Commissioner reconstituted, as in Ontario, as the "Integrity
Commissioner", or as in Alberta, where my colleague Mr. Clark is known as
the "Ethics Commissioner".
If this kind of addition were to be
made to the statute, the result, I believe, would be the implementation of the
highest possible standard through incorporating in the one statute British
Columbia’s conflict of interest requirements and the federal Code requirements,
backed by an effective investigative and enforcement mechanism.
Derril G. McLeod (Saskatchewan): Many aspects of the Saskatchewan act
are substantially the same as those of the other jurisdictions. The disclosure
requirements are a little more stringent than those of British Columbia. The
private disclosure statements require the amount to be disclosed, but the
public disclosure statements I prepare that are available for public inspection
do not disclose the value of assets, the amounts of liabilities or anything of
that nature. In fact, they are very much more limited.
I have only been in this position
now for a year and a half. During that time I have had the opportunity to meet
all of the members and their spouses in the review process.
I am satisfied that the
introduction of this type of legislation in Saskatchewan – and I suspect
anywhere else – is not due to the sudden outbreak of moral turpitude among
members or a rash of conflicts of interest. I think it is important to remember
that this type of legislation is designed primarily for the benefit of the
public, and not for the benefit of members. It has a secondary role and that
is, of course, the direct benefit to members. In its operation it will enhance
the reputation of these institutions for probity and integrity.
You must remember that all too
often conflicts of interest are more perceived than real. I have just concluded
my first investigation in Saskatchewan of an allegation of conflict of interest
on the part of the Minister of Social Services. There was a perception of
conflict. It only took me ten days to prepare and file a report that satisfied
everyone that there was no conflict of interest and no breach of the Members
Conflict of Interest Act.
The other thing that has to be
borne in mind is that these provisions are not unlike, and indeed are analogous
to, codes of ethics that are in place and adopted by all sorts of institutions
and professions. Universities, hospitals, the legal profession, the medical
profession and the nursing profession all have them, and they are all there for
the same reason. They are there to protect the public and to ensure that public
trust in those institutions is maintained, because it has to be at a very high
level. I think the same reasoning applies here.
The next thing I want to point out
is that under these acts the institutions, be they the legislatures or the
House of Commons, retain their complete supremacy or sovereignty with respect
to any final decision in any given case. In the acts I have looked at there is
only one exception to that. The Saskatchewan act, the Ontario act and I think
the British Columbia act each have an offence penalty enforceable before a
provincial court judge with respect to violation of sections pertaining to
employment by a member who has ceased to be a minister or a member.
I have some difficulty with that. I
had occasion to be asked by a minister who was resigning her position for
advice on what she could do and what she could not do. I had to end up telling
her I thought what she was proposing to do was probably okay, but the act gives
jurisdiction over that to a provincial court judge. I am not at all sure why
that should be so, and I am not convinced that I see any good reason for it.
Of course there is always a
temptation to want to go into too much detail in these things. Too much detail
is usually a bad idea because the specific excludes everything else. In this
inquiry I just finished dealing with, I had occasion to decide whether the
minister was in violation of section 5 of the Saskatchewan act. The
Saskatchewan act says:
A member shall not use his or her
office to seek to influence a decision made by another person to further the
member’s private interest, his or her family’s private interest or the private
interest of an associate.
Then it defines family. A family
includes only dependent children. During my inquiry I find he is supposed to
have helped his son, but it turns out the son is 22 years old. He is not a
dependant and so is outside the act.
The final comment I have to make is
regarding the use and appointment of outsiders – commissioners, like this lot –
to interpret and advise with respect to the act. Now remember, the final
decision is always with the House or the Senate or the legislature. In my
respectful submission, I believe it’s probably wise to have someone outside the
House or the institution. The fact that there are five of us here with
different backgrounds, and I think all appointed in the same fashion by the
unanimous vote of our legislatures, probably indicates that it is possible
after all to find people to do this job, people in whom the members can have
confidence, who can deal with things that otherwise might fester and create
problems in a fairly summary fashion and get the matters disposed of.