The Evolution of the Office of Ethics Commissioner in Canada

Ian GreeneYork University

The Ethics Commissioners• In 1988: Ontario legislature created Canada’s 1st 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 comm’ers• 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 prov’s

• Paper will track history of establishment of offices of ethics commissioners, and analyse the impact of these offices.

Establishment of Ethics Commissioners in Canada

• Ontario 1988• British Columbia 1990• Nova Scotia 1991 (designated judge)• Alberta 1992• Newfd/Lab 1993• Saskatchewan 1994• NWT 1998• PEI 1999• New Brunswick 2000• Nunavut 2000• Manitoba 2002• Yukon 2002• Quebec 2002 jurisconsult (half way)• House of Commons 2004• Senate 2005• Quebec 2009 ethics commissioner

Provincial & Territorial Comm’sStart with Ontario

• 1986: Premier Peterson’s gov’t rocked by several conflict of interest scandals– Premier’s guidelines– 1986: Eleanor Caplan (St Comm on Pub Accounts)• Husband’s co contracted with gov’t

– 1986: René Fontaine (St Comm of Leg Assembly)• Min of Northern Dev; had holding in forestry co’s

– John Black Aird asked to investigate• 15 cab min’s breached guidelines in minor ways

Aird’s 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 Min’s annually to explain rules and

review non-personal assets; publicly disclose significant non-personal assets

The Canadian Model• Peterson gov’t implemented Aird’s

recommendations in 1987 legislation, except that it applied to all MPPs, not just ministers

• Required Annual Report• Aird’s 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

Ontario’s 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 commissioner’s 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 1st 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 didn’t report to Commissioner as required• Clark blamed himself – didn’t 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 comm’s 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 Territoriesadopting 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 gov’t to handle disclosures of assets by ministers as req’d by Pearson’s 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 PM’s 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 gov’t re-introduced Chretien leg, but

with separate ethics comm for Senate (Senate Ethics Officer)

• Legislation passed in 2004. • 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 gov’t 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: gov’t 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, Shapiro’s 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 IndexPre- and Post-Commissioner

Total number of substantiated “events”

0102030405060708090

100

Index X 100

Ont B.C. N.S. AB Nfld Sask NB Man Canada

Jurisdiction

Pre-ComPost-Com

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 (cont’d)• 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.