The Evolution of the Office of Ethics Commissioner in Canada Ian Greene York University

The Ethics Commissioners In 1988: Ontario legislature created Canadas 1 st independent office of ethics commissioner for a provincial legislature. As of 2009, all of the provinces and territories, as well as the Senate and House of Commons, will have ind ethics commers These officials have a dual role: – educate elected members about the ethics rules they need to follow (primarily rules designed to prevent conflicts of interest) – inquire into allegations of breach of the ethics rules In 2002, Quebec went part way -- jurisconsult, available to advise on compliance with the conflict of interest rules. – proved inadequate; in May 2009, legislation was tabled to create the office of an ethics commissioner along the lines of the other provs Paper will track history of establishment of offices of ethics commissioners, and analyse the impact of these offices.

Establishment of Ethics Commissioners in Canada Ontario1988 British Columbia1990 Nova Scotia1991 (designated judge) Alberta1992 Newfd/Lab1993 Saskatchewan1994 NWT1998 PEI1999 New Brunswick2000 Nunavut2000 Manitoba2002 Yukon2002 Quebec2002 jurisconsult (half way) House of Commons2004 Senate2005 Quebec2009 ethics commissioner

Provincial & Territorial Comms Start with Ontario 1986: Premier Petersons govt rocked by several conflict of interest scandals – Premiers guidelines – 1986: Eleanor Caplan (St Comm on Pub Accounts) Husbands co contracted with govt – 1986: René Fontaine (St Comm of Leg Assembly) Min of Northern Dev; had holding in forestry cos – John Black Aird asked to investigate 15 cab mins breached guidelines in minor ways

Airds recommendations Conflict of interest legislation requiring public disclosure of non-personal assets by cabinet ministers, and recusal in a potential conflict of interest situations Appoint an independent ethics commissioner – officer of legislature – Meet with Cab Mins annually to explain rules and review non-personal assets; publicly disclose significant non-personal assets

The Canadian Model Peterson govt implemented Airds recommendations in 1987 legislation, except that it applied to all MPPs, not just ministers Required Annual Report Airds model had not been tried anywhere else in the world Became known as the Canadian model; eventually adopted by all Canadian jurisdictions, usually after a scandal Jurisdictions in Australia, Europe and U.S. have gone part-way to implementing this model

British Columbia 7 coi scandals in late 1980s, one involving Premier Vander Zalm Sept 1990: B.C. leg enacted leg very similar to Ontarios in reaction Hon. Ted Hughes appointed Interim COI Commissioner – Legislation required extensive search process Because of allegations that Vander Zalm improperly used his office to sell his theme park, Fantasy Garden, Premier requested Hughes to investigate. Hughes agreed – understanding that the 1987 coi guidelines applied because events happened before the legislation.

Results of Vander Zalm inquiry Vander Zalm breached guidelines by – Arranging for Tan Yu (who purchased Fantasy Garden eventually) to get special treatment from cabinet ministers and Lieut-Gov – Used his office to help Tan Yu purchase Petro Canada property near Fantasy Garden – Tan Yu gave Vander Zalm $20,000 in cash – no receipts. Reasonably well-informed persons could properly conclude that the Premier's ability to exercise his duties and responsibilities objectively in the future might appear to be compromised given the bizarre circumstances in which the money was given to the premier and the lack of any reasonable explanation.

Aftermath Vander Zalm resigned Social Credit Party defeated in 1991 election and then disappeared Hughes confirmed as COI Commissioner for five- year term (later became Commissioner for Yukon) In final Annual Report (1996), opined that the independent commissioners educative role was instrumental in preventing possible conflict of interest scandals.

Alberta 1990: Premier Getty accused of coi because of participating in cabinet decisions that affected his oil holdings. Independent panel recommended Ontario/BC model; recommendations implemented Bob Clark, former Socred cabinet min, chosen as Commissioner by legislature from nearly 300 applicants 9 investigations during 1 st 3 years; one minor breach plus Multi-corp.

Multi-Corp Premier Ralph Klein promoted Multi-Corp in Hong Kong & other AB companies Mrs. Klein given 10,000 shares well below cost; no payments until sold Kleins didnt report to Commissioner as required Clark blamed himself – didnt ask if the shares had been paid for Mrs. Klein sold shares for $51,000 profit and donated to charity

Newfoundland 1993 in response to scandals Chief Electoral Officer also serves as ethics commissioner Investigated allegation that Premier Wells had benefitted from selling Nfld & Lab Hydro to Fortis Inc., in which Premier had shares – Result: Prem had placed Fortis shares in blind trust and did not know whether they were still in trust; no coi

Saskatchewan Late 1980s and early 1990s: all 38 Sask Conservative MLAs approved diversion of 25% of comms allowances into numbered companies. Some got illegal payments from these companies. Several convicted of fraud; some went to jail. Conservative Party destroyed in 1991 election 1994 legislation (NDP) partly a response to this scandal

Nova Scotia & New Brunswick 1991: Nova Scotia legislature enacted coi legislation and appointed a designated superior court judge to handle filings of nonpersonal assets and investigate allegations of wrongdoing New Brunswick: adopted same procedure for a time, but moved to the Canadian model in 2000.

Other Provinces and Territories adopting the Canadian Model NWT: 1998 in reaction to scandals PEI: 1999 in reaction to a scandal Nunavut: 2000 in reaction to scandals Manitoba: 2002 in reaction to scandals Yukon: 2002 in reaction to a scandal

Parliament Assistant Deputy Registrar General: 1974 – created by Pearson govt to handle disclosures of assets by ministers as reqd by Pearsons coi guidelines Canadian model legislation introduced in 1988 and 1990, but 3-person ethics commission Would have covered MPs, Senators, and senior public servants Both died on order paper

Red Book promises and aftermath Central issue in Liberal red book of 1993 was ethical politics. Promised independent ethics counselor at least for lobbyists ADRG title changed to ethics counselor and reported to PM. Oversaw Lobbyists Reg Act plus PMs coi guidelines for cabinet Late in Chretien era – reaction to ethics scandals, especially Sponsorship, Chretien introducted coi legislation that would have created an ind ethics comm for H of C and Senate. Leg opposed by Senate – wanted separate commissioner

Martin 2004: Martin govt re-introduced Chretien leg, but with separate ethics comm for Senate (Senate Ethics Officer) Legislation passed in Bernard Shapiro became first ethics commissioner after Martin consulted with Harper Harper & Conservatives critical of Shapiro from the start Jean Fournier appointed Senate Ethics Officer, 2005 Martin appointed Gomery commission to investigate Sponsorship scandal

Harper Apparently in response to Gomery recommendations, Harper govt spearheaded the Federal Accountability Act – Abolished federal ethics commissioner and Senate ethics officer and replaced with single ethics and conflict of interest commissioner. – Likely a ploy to force Shapiro out – Senate vehemently opposed: govt accepted amendments to FAA leaving Senate with own regime – Shapiro resigned in 2007; replaced by Mary Dawson My view: Shapiro did a fairly good job; Harper unstatesmanlike Mary Dawson, Shapiros replacement, is a career public servant with impeccable credentials Current attempt by Harper to abolish Senate Ethics Officer is bizarre – attempt to control everything and eliminate checks and balances

Impact of Ethics Commissioners Used the Canadian Index and Canadian Newsstand to count coi events before and after the creation of independent ethics commissioners in each jurisdiction I calculated the average number of substantiated conflict of interest events per year (the index), and then this multiplied this number by 100 so that the index could more easily be shown in graphic format. Figure 2 shows that in every jurisdiction except Manitoba, there was a drop – often quite dramatic -- in the number of substantiated conflict of interest events after the appointment of an independent conflict of interest commissioner. In Manitoba, the numbers were very small, however, because there had been an independent ethics commissioner for only two years of my study.

Conflict of Interest Events Index Pre- and Post-Commissioner Total number of substantiated events

Conclusion The concept of independent ethics commissioners who are officers of the legislature or Parliament is a Canadian innovation that is working. Prior to the creation of these positions, conflict of interest and other ethics guidelines were interpreted in a variety of ways by public office holders, and there was no way of determining in an impartial fashion whether the guidelines had been breached other than hearings by legislative committees, or the appointment of a commission of inquiry Independent ethics commissioners provide a quick and credible mechanism for investigating allegations of breaches of the ethics rules. More importantly, the role of the commissioners in educating elected members about the content of the rules, and providing them with advice about how to avoid conflicts of interest given their personal business and financial situations, has clearly done a great deal to keep elected politicians out of trouble.

Conclusion (contd) Whenever a jurisdiction creates the office of an independent ethics commissioner, there are complaints from members that their behavior is being too tightly monitored. Inevitably, most members find the independent commissioners helpful in helping them to decide how to behave in ambiguous situations. As well, sometimes members feel pressured by members of their political party to behave in ways that they are not comfortable with, and the opinion of the ethics commissioner provides the members with ammunition to resist such pressure.

Conclusion (final) Now that the initial controversy over the office of the federal Ethics Commissioner has subsided, there is the possibility that federal MPs and cabinet ministers will take full advantage of the office. Having a separate Senate ethics officer is a situation that is working well, and should not be tampered with.