CONFLICT-OF-INTEREST GUIDELINES
MINISTRY OF THE ATTORNEY GENERAL
CONTENTS
Wednesday 20 February 1991
Conflict-of-interest Guidelines
Ministry of the Attorney General
Ian Greene
Adjournment
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair: White, Drummond (Durham Centre NDP)
Acting Chair: Fletcher, Derek (Guelph NDP)
Vice-Chair: Morrow, Mark (Wentworth East NDP)
Carr, Gary (Oakville South PC)
Chiarelli, Robert (Ottawa West L)
Harnick, Charles (Willowdale PC)
Mathyssen, Irene (Middlesex NDP)
Mills, Gordon (Durham East NDP)
Poirier, Jean (Prescott and Russell L)
Sorbara, Gregory S. (York Centre L)
Wilson, Fred (Frontenac-Addington NDP)
Winninger, David (London South NDP)
Substitutions:
Frankford, Robert (Scarborough East NDP) for Mr F. Wilson
Huget, Bob (Sarnia NDP) for Mr Winninger
Scott, lan G. (St George-St. David L) for Mr Chiarelli
Clerk: Freedman, Lisa
Staff: Swift, Susan, Research Officer, Legislative Research Service
The committee met at 1007 in committee room 2.
CONFLICT-OF-INTEREST GUIDELINES
The Chair: I would like to call this meeting to order. There are a couple of things I would like to make mention of from the outset. We have appearing before us today, or rather this morning and tomorrow a number of important witnesses, some of whom are politicians, and perhaps the respect offered to politicians is not as great as would be to other witnesses.
I think there needs to still be some degree of respect to politicians of whichever persuasion. The committee members have just received a copy of some suggestions that I believe came from the Premier's office. These are not directions but suggestions, hopefully attempting to inform our proceedings, not direct them.
MINISTRY OF THE ATTORNEY GENERAL
The Chair: We have with us Howard Hampton, the Attorney General, and Mary Hogan?
Ms Hogan: Yes, I am here.
The Chair: Thank you, Mary. And Doug Ewart, the director of policy division with the ministry.
Mr Sorbara: Just while the witnesses are getting seated, Mr Chairman, I know that the clerk of the committee passed out this document. It does not seem to be signed by anyone. It does not seem to --
The Chair: I believe I indicated it was from the Premier.
Mr Sorbara: Did he tell you that specifically and did he draft it himself, or does this come from his office or --
The Chair: The Chair received the documentation. This is the first I have seen it.
Mr Sorbara: Apparently it comes from the Premier. The Premier has not signed it, but we will take you at your word, Mr Chairman, that --
The Chair: Clerk, would you like to address that?
Clerk of the Committee: I can clarify exactly where it came from within the next few moments.
The Chair: Thank you. Mr Hampton.
Hon Mr Hampton: Good morning, Mr Chair, and members of the committee. For the record, I want to point out that to my far right is Doug Ewart, who is the director in the policy development branch, Ministry of the Attorney General. To my right is Mary Hogan, who is the new Deputy Attorney General for the province of Ontario. And we have with us as well today Allan Shipley, who is counsel in the Ministry of the Attorney General and who has considerable expertise with respect to conflict-of-interest guidelines, the history, etc. We may, if you feel the need, call upon Mr Shipley if you have particular issues that you want to have addressed.
It is my understanding that the committee wanted to hear from me some information on the development of conflict-of-interest guidelines and laws in Ontario, and I come today prepared to deal with that issue. And if it is acceptable with the committee, I launch into that now.
For those of you who have been members of the Legislature for some time, you will be aware that there is a long history to the regulation of conflict of interest and conflict-of-interest guidelines in the Legislature of Ontario. For those members of the committee who are new to the Legislature, the history is very long indeed and very interesting. In fact, regulation of conflict of interest is both a very new and a very old concept in Ontario.
Prohibitions against holding elected office while being a beneficiary of a contract with the government were enacted as early as 1868, and in 1876 members were expressly prohibited from accepting any fee or reward for promoting or opposing any matter submitted to the assembly. Those provisions that were adopted in 1876 form the basis for section 10 and section 40 of the current Legislative Assembly Act.
An even older convention transferred from the British House of Commons is that members not vote on any matter in which they have a pecuniary interest. This rule is now incorporated in the standing orders of the Legislative Assembly. Perhaps what is new is the terminology and the attempt to develop and expand upon these basic historic concepts.
Recent history probably begins in 1972 when then-Premier Davis responded to concerns about the conduct of Darcy McKeough and Dalton Bales by issuing conflict-of-interest guidelines for his ministers. The following year they were extended to parliamentary assistants. In announcing the guidelines, Premier Davis stated that "they are broader in scope and far more definitive and precise than any previously enunciated by any comparable jurisdiction, federal or provincial, in Canada or anywhere else."
Among other things, the guidelines required public disclosure of interests in land, of share and debt interests in private companies and land, and partnerships and proprietorships. Moreover, with limited exceptions, ministers were prohibited from acquiring further interests in land. Ministers were required to abstain from business and professional activities and to divest themselves of interests in public companies or to place their interests in a trust. Significantly, most of these guidelines also applied to family members of ministers; that is, spouses and minor children. Keep in mind this is the early 1970s.
In November 1978, following some controversy about ministerial contacts with officials involved in the administration of justice, Premier Davis issued further guidelines concerning communication between cabinet ministers and key officials in the judicial system. When the Liberals formed the government, Premier Peterson endorsed the Davis conflict guidelines in September 1985 and extended them to confidential staff as well as parliamentary assistants. The most noteworthy change made by Premier Peterson was to permit interests in private companies to be placed in a blind trust.
In June 1986 questions were raised about breaches of the guidelines by Elinor Caplan and an 11-day hearing was conducted that summer by the standing committee on public accounts. Questions were also asked concerning another member, René Fontaine's compliance with the conflict-of-interest guidelines and that matter was referred to the standing committee on the Legislative Assembly.
On 2 July 1986 Premier Peterson requested the former Lieutenant Governor, John Aird, to consider the entire question of conflicts of interest and to make recommendations for new rules. The Caplan report, as it was known, was released on 18 September 1986. It expressed concern about the lack of certainty faced by members trying to operate under the guidelines and recommended the development of legislation and an independent arbiter, among other things. The report also recommended fuller disclosure of financial interests.
The Caplan report was followed within a week by the Aird report, which found that in some cases the guidelines were vague, imprecise and even self-contradictory. Mr Aird's report included a draft conflict-of-interest act. The basic scheme proposed by the act was to broaden the disclosure requirements while establishing an independent commissioner to provide advice to ministers. The Aird scheme was premised on the belief that ministers, having fully disclosed their interests, would be able, with the advice of the commissioner, to avoid any conflicts. Openness and avoidance would make divestment unnecessary.
The report concerning M. Fontaine was also tabled about the time of the Aird report. It did not deal extensively with policy recommendations, encouraging only review of the Aird report. The Aird report was referred to the standing committee on the Legislative Assembly on 15 October 1986, but before the committee reported, the Attorney General of the day -- and that was Mr Scott -- on 27 November 1986 introduced Bill 160, the Members' Standards of Office Act. From the Attorney General's statement on tabling Bill 160, it was evident that the approach recommended by Mr Aird was a major influence on the bill.
The bill was described as having four basic elements: (1) a definition of conflict of interest accompanied by a concise code of conduct; (2) a duty of extensive disclosure of financial interests; (3) an independent adviser on conflicts; and (4) a procedure for investigating conflicts and imposing sanctions. Notable differences between Mr Aird's draft and Bill 160 were the extension of the basic rules to all members, not just ministers, and the substitution of the management, or open, trusts for blind trusts and the provision for sanctions as opposed to political censure.
That bill died on the order paper at the end of 1986, but in the meantime the standing committee on the Legislative Assembly had reported on its consideration of the Aird report. It was broadly supportive of the Aird report but made additional recommendations such as the inclusion of senior civil servants, reference to standing committee of unresolved allegations of conflict, a provision for penalties, and the need to consider the regulation of lobbying.
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On 5 May 1987, shortly after the Legislature resumed, virtually the same legislation was introduced as Bill 23. After second reading in June, the bill was referred to standing committee but again died when the 1987 summer election was called.
In September, the bill not having been enacted, Premier Peterson announced a new set of guidelines based on Bill 23 but applying only to government members.
When the new Legislature returned on 3 November 1987, the bill was reintroduced, with a few modifications, as Bill 1. It received second reading in December 1987 and was the subject of nine days of intense scrutiny in the standing committee on the Legislative Assembly. The bill that finally went to standing committee in January 1988 was substantially the same bill that had been introduced 15 months earlier in November 1986.
During the standing committee hearings, Mr Aird appeared as a witness. He had been serving as interim commissioner under the new September 1987 Peterson guidelines. He expressed some concerns regarding management of personal financial interests, disclosing income of private companies, tracing affiliates and disclosing amounts of personal income.
A number of changes were made in standing committee, many on government motions, but several in response to opposition motions. For example, members were required to disclose not only income from private companies but also the assets and liabilities of private companies. The process for considering the commissioner's report was speeded up, and provisions regarding management of personal financial interests were clarified.
The bill, as amended, received royal assent on 11 February 1988, and was proclaimed in force on 1 September 1988 with former Chief Justice Gregory Evans as commissioner.
Although the legislation that came into effect was in most material respects the same as the initial bill, there were throughout its passage numerous criticisms levelled at the bill by the parties then in opposition. A common criticism concerned the lack of any statutory recognition of a duty to divest interests that could create a conflict. Retaining the interest while abstaining from decision-making was felt not to be adequate protection of the public interest. In the same vein, the bill was criticized for not specifically prohibiting holding contracts or licences from the government.
There was concern on the one hand that disclosure was not detailed enough to permit a real assessment of potential conflicts, and on the other hand that the duty to disclose need not extend to backbenchers and opposition members who were not in a position to make government decisions.
At the same time, it was proposed that the legislation be extended to include parliamentary assistants, confidential ministerial staff and senior civil servants.
As well, it was felt that a comprehensive bill should include provisions regulating paid lobbyists. Concern was also expressed that the public had no direct opportunity to make and pursue allegations of conflict.
All parties agreed that there was a need for legislation and that legislation should be developed through all-party consensus. The disagreement focused on the extent to which this particular legislation would effectively achieve its objective of maintaining public confidence in the integrity of government.
In considering the development of conflict-of-interest legislation in Ontario, regard should also be had to developments elsewhere. By 1986, every other province had some statutory provision regarding conflict of interest, and they each required all members to disclose their interests.
Federally, in 1984 a task force, co-chaired by Mitchell Sharp and Michael Starr, in its report, Ethical Conduct in the Public Sector, recommended that legislation be enacted. However, in 1985 the government issued unlegislated guidelines, Conflict of Interest and Post-Employment Code for Public Office Holders. The code applies to ministers and public servants. Among other things it sets out general principles of conduct, requires disclosure of interests, recognizes blind trusts and establishes an office to administer the code.
That code became the focus of national attention with the Parker inquiry into the conduct of Sinclair Stevens. Mr Justice Parker's report was released in December 1987, just as Ontario's Bill 1 was being debated. He had considered an earlier version of the Ontario bill in drafting his recommendations. Although following the Ontario approach in many respects, that is, public disclosure should be the cornerstone, he recommended that federal legislation also deal with apparent conflict of interest. He expressed serious concerns about management trusts, but clearly stated that blind trusts should be abolished.
Two or three months after the Parker report, the federal government introduced the Members of the Senate and House of Commons Conflict of Interest Act. This bill was similar to the Ontario act in that it required disclosure and provided for an independent body to administer the disclosure requirements and to conduct inquiries. While there are differences with the Ontario act, the similarities are probably greater than those differences.
The federal bill did not proceed and was reintroduced with minor changes in November 1989. It has not had second reading at this time.
In early 1990 the Ontario conflicts commissioner raised with the Attorney General a number of issues relating to possible amendments to the Members' Conflict of Interest Act. The commissioner's concerns were passed on to the leaders of the opposition parties for comment. The comments are reflected in the submission made by the commissioner on Monday.
With the arrival of the new government in Ontario, the speech from the throne declared that the government's first challenge was to earn the trust and respect of the public and it made the development of clear standards of government conduct its first priority.
At the same time the Premier recognized that amendments to the Members' Conflict of Interest Act should not proceed without an opportunity for all-party consultation. Moreover, any alteration of the duties and responsibilities of the commissioner, an officer of the Legislative Assembly, would require statutory authorization. Accordingly, as a first step, the Premier announced an extensive set of guidelines for his ministers and parliamentary assistants, not to supplant the legislation and the commissioner but to supplement the existing legislation until such time as the appropriate statutory amendments could be made.
As Attorney General, I should stress that my interests in these guidelines and the legislation are the same as every other member's: simply to promote integrity and to ensure public trust and confidence. The Ministry of the Attorney General has no proprietary interest in the legislation. Administrative responsibility falls under the Office of the Legislative Assembly. I am pleased and honoured that the Premier invites our advice on these matters, but I realize that this legislation and policy belong to all members, and I look forward to the deliberations and the report of the committee.
The Chair: We have, I believe, until --
Mr Fletcher: Until 11:15.
The Chair: Until 11:15, thank you, Mr Fletcher. I would like to suggest that we do the rotation as we have been, with similar time allotments, starting with the official opposition.
Mr Sorbara: Is it clear, Mr Chairman, that each party has questions of the Attorney General and the other witnesses? Is it clear that each of the other parties --
The Chair: I would presume that they do, and if the parties fail to use their time, as on Monday, whichever party has further questions can use that time left over.
Mr Sorbara: I would like to begin by thanking the Attorney General for agreeing to appear before this committee in its deliberations on conflict of interest. I would like to welcome the new Deputy Attorney General, Ms Hogan, and say to her as I welcome her that she is taking on very serious responsibilities, and I could not think of anyone more competent, I tell the Attorney General, than Ms Hogan to take on those responsibilities as the new Deputy Attorney General.
I did have some criticisms of the Attorney General when he made his announcements. In respect of court backlog, I do not think he could have made any finer move in trying to deal with court backlog and the administration of justice than bringing Ms Hogan down to Queen's Park to assist in the administration of that ministry.
I just want to say to Mr Ewart that it is good to see him here at this committee. We do not see each other as often as we used to, but oh well, it is yet another room at Queen's Park and yet another committee, and we might as well get on with our deliberations.
I want to begin by asking the Attorney General if he could summarize in his own words what the pith and substance of the current act is, the one that now binds all of us as members of the Legislature.
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Hon Mr Hampton: I think you are asking me to try to summarize --
Mr Sorbara: In other words, the law that we have now, Bill 1 as you refer to it, what is its approach to dealing with conflict of interest? What is the heart and soul of the bill?
Hon Mr Hampton: Clearly the emphasis is upon disclosure, and then, through the office of the commissioner, to assist members in avoiding possible or potential conflict situations. So you declare what your interests are and then, having declared your interests, as you go forward from there in specific situations you strive to avoid possible conflicts.
Mr Sorbara: But just to help out the Attorney General, would it be fair to say that there are really three cornerstones of the current law? That is to say, (1) that there are prohibitions against doing certain things where one's private interest conflicts with one's public duty; so there are prohibitions, sanctions in the act; (2) that really the heart and soul of the act is ongoing disclosure by ministers and I guess by members of their private interests. There is an obligation in the bill to, in an ongoing way, disclose to the commissioner, and through the commissioner the general public, what a minister has in terms of assets and liabilities, and (3) that there is an independent arbitrator of issues relating to conflicts, that is, the conflicts commissioner. Would that be a fair assessment of what the act does?
Hon Mr Hampton: I would agree with you that there is a definition of conflict. There has been some disagreement as to whether that definition was adequate. There is an extensive disclosure of financial interests. Again, you will remember from a debate that took place in committee and in the Legislature that there is some question as to whether or not the extent of disclosure was adequate. Certainly the other focus is the independent adviser on conflicts.
Mr Sorbara: Right. I would like the Attorney General to advise the committee as to the extent to which the Premier or members of the Premier's office consulted with him directly in the development of the new government's new guidelines in respect of disclosure prior to their being announced.
Hon Mr Hampton: There was fairly extensive consultation between the Premier's office, myself and members of the ministry staff. I think we met on probably four or five occasions at least.
Mr Sorbara: Did you ever meet directly with the Premier in the development of these guidelines?
Hon Mr Hampton: Yes.
Mr Sorbara: And would you agree with me that there are really two new departures in the Premier's guidelines? That is, first, in addition to an additional disclosure burden, if you like, the main thrust in the new guidelines is that ministers are required, except under certain circumstances, to divest themselves of private interests that they have. Second, the person to arbitrate as to whether or not those interests have to be divested is not the independent commissioner set up under the act but, in these guidelines, the Premier himself
Hon Mr Hampton: Just to be clear, there is certainly an emphasis on divestment. There is certainly an appreciation that in some situations interests, whether they be interests in land or interests in a particular business, may in themselves create the impression or the perception that a conflict exists. Therefore there is an emphasis on divestment. As I explained earlier in my statement, because these are guidelines, because the commissioner has the duty of dealing with the existing act, the feeling was that, yes, the Premier ought to be the final decision-maker in terms of whether within the terms of the guidelines a conflict exists or not.
Mr Sorbara: I will just further ask the Attorney General, on that score then, is he aware of the commissioner's testimony the other day before this committee that no other jurisdiction known to him has guidelines or statutes that require ministers or members to divest of their private interests and that in his view divestiture was, to quote him, "a draconian measure"?
Hon Mr Hampton: I am aware of that.
Mr Sorbara: Do you have any comment on that?
Hon Mr Hampton: No.
Mr Sorbara: Are you aware of any jurisdiction that requires divestiture?
Hon Mr Hampton: I am not aware of any at this time, no.
Mr Sorbara: Do you think it is a draconian measure?
Hon Mr Hampton: I can think of situations where divestment may be called for.
Mr Sorbara: Could you tell us what those situations are?
Hon Mr Hampton: I can think of an example from the context of the part of Ontario that I come from, for someone who has extensive holdings, for example, in mining properties, logging properties, which basically form the heart of the northern Ontario economy, it is very difficult to make any decision affecting what happens in northern Ontario without dealing with land issues, development of timber resources, development of mining resources. So someone who has extensive holdings or even small holdings of forest property or mineral-bearing property in northern Ontario likely would have a problem sitting in cabinet, making decisions affecting even general development in northern Ontario.
Mr Sorbara: What about if you are a farmer? Should you be able to sit in the Legislature and participate in deliberations on the milk marketing board or farm income policy or farmer assistance, or should you have to sell the farm?
Hon Mr Hampton: I am not that knowledgeable on the mechanics of --
Mr Sorbara: You have been here for a few years. You know that we pass legislation and we develop programs to assist farmers. One of the most recent was called OFFIRR. I cannot remember what that stood for, but it was a farm income assistance program. You have sat in cabinet committees now and you know that there are numerous policies brought forward by the Ministry of Agriculture and Food through the minister for cabinet's consideration, all dealing with the income and viability of farming operations in Ontario. I want to know what your view is as to whether or not a farmer ought to be able to sit in an Ontario cabinet if he still owns his farm and he might potentially benefit by one of those programs.
Hon Mr Hampton: Perhaps this will assist you. I can give you specific examples where the perception in terms of the public might be that somebody who holds land and then sits as a member of cabinet making decisions regarding the development of land -- and the case that I can cite most clearly would be any type of land development issues in northern Ontario because that part of Ontario is so resource-based, land-based. So you are into a situation right there where the perception might be that a cabinet member, in making any decisions about development in northern Ontario, may potentially be in a conflict situation.
Mr Sorbara: So are you saying that the real problem is the perception of the public and not the real issue of a conflict where an individual is trying to benefit himself or herself personally. Is it the perception that is the problem?
Hon Mr Hampton: I think we have to keep in mind here that we are essentially, as legislators, part of the political process and that perception in politics many times is just as important as reality. So if members of the public are of the view or hold the perception that somebody has holdings or interests in his private life and he is making decisions that may affect those, then I think we potentially as legislators have a problem.
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Mr Sorbara: And if it turns out that a group of the public feels that a farmer who has a 200-acre interest down in southwestern Ontario ought not to be making policy that affects, my God, real property tax rebates, farm income policy, milk marketing board policy, that person ought to either sell the farm or stay out of the cabinet of Ontario.
Hon Mr Hampton: No, I do not think that is --
Mr Sorbara: You said that the problem was perception. What happens if there is an increasing perception that farmers ought not be setting policy that deals with real property taxes, the milk marketing board, etc? If that perception arises, should the Premier develop new guidelines that, in his exceptions to divestiture, require him to make sure that farmers sell the farm?
Hon Mr Hampton: I think if you want to take this further out in the spectrum, what you will get into is a situation where ultimately, even if we have a conflicts commissioner, the Premier, who is, again, ultimately responsible for the government, will have to make some of those decisions and may have to say to potential ministers, "If you want to be in cabinet you may have to divest yourself of this."
Mr Sorbara: Yes, but I say to the Attorney General that you are the chief law officer of the crown; that in these matters, at least historically up until 6 September 1990, the Attorney General of the province of Ontario was the chief adviser to the Premier in these sorts of matters, in constitutional law matters, in conflicts matters, in a whole range of matters. But what I am trying to get to is, what is the Attorney General's advice to the Premier on these sorts of things?
Let's go back to the northern Ontario example. If an individual who owns a million dollars' worth of shares in a timber interest or in a forest licence in northern Ontario is elected to the Legislature and he is part of the governing party, ought he to be required to sell his interest in that forest licence before he can sit in cabinet? What would your advice be to the Premier?
Hon Mr Hampton: Let me point out to you that in fact the federal code of conduct now --
Mr Sorbara: I am sorry to interrupt the Attorney General. I know about the federal code of conduct and I know a little bit about the history and I agree that your remarks summarize that history very well. What I want to know now is, what advice would you offer to the Premier in a situation that I have just presented to you?
Hon Mr Hampton: I think that is already clear in the guidelines.
Mr Sorbara: I am sorry --
Hon Mr Hampton: "Ministers are required to divest themselves of,
"(a) any assets, liability or financial interest which causes or could appear to cause a conflict of interest."
That has to be the concern. I want to say to you that fundamentally this is not a matter of law, and if you approach it from that direction I think you miss the point. Fundamentally, this is a matter of creating public confidence in government and ensuring public confidence in government. In that sense, at some point these judgements become public political judgements as to what the public expectation is of us as politicians and as legislators.
Mr Sorbara: I want to say to the Attorney General that the Premier himself sat before this committee and said in the House that he looks forward to incorporating these guidelines into law which will affect the lives of people and will determine the quality and the kind of legislators that we have in this Parliament for years and years to come. So I disagree with him on that point. If you are telling me that we should just do this for public perception, to establish some sort of public confidence, I say to the Attorney General that what he is talking about is trying to protect the rear ends of politicians and ministers and not to do the opposite. In the example --
Hon Mr Hampton: With respect, Mr Sorbara, I think we have to disagree fundamentally there. I think what we are talking about here is creating and ensuring public confidence that people can look at our private interests and can look at the work we do as legislators or as members of the cabinet and be sure and have comfort that the two are not too close together.
The Chair: You have time for one further question, Mr Sorbara.
Mr Sorbara: Okay, Mr Chairman. Then I will just hopefully defer another series of questions till the end of this hearing if there is any more time. Perhaps there will not be any more time, but oh well, that is too bad.
My last question then to the Attorney General is to plead with him once again to consider my hypothetical and to tell this committee what he would tell the Premier under those circumstances.
The Premier, in his guidelines, places the requirement front and centre, "Thou shalt divest." Then he places after the substantive requirement a series of caveats: undue hardship -- the Premier was not able to say what undue hardship was; unless there was sufficient disclosure -- I had thought that we had an act which required pretty significant disclosure. Maybe we need more. But I say to the Attorney General, if he is unable to answer that question here before the committee and put more meat on these caveats of undue hardship and the like, or if he cannot agree with the commissioner that divestiture is a draconian measure, that there are lots of individuals up in northern Ontario and farmers in southern Ontario and entrepreneurs right throughout Ontario who will say, when it comes time for nominations as candidates for provincial parties, "I'm sorry. I have to take a pass because I have $500,000 in shares and their value has dropped tremendously and I could never sell them in 60 days so I haven't got a hope in hell in sitting of Bob Rae's cabinet and, if Bob Rae puts these guidelines into legislation, any other Premier's cabinet." So it is terribly important that the Attorney General give some substance. Tell the people who could or could not qualify. If you leave it as vague as you are leaving it here, anyone who has a business interest will say, "I guess I don't qualify." Does that not appear to you to be a problem?
Hon Mr Hampton: I would suggest to you, Mr Sorbara, that the hypothetical situations you created are situations that people in the normal course of real life would be able to sort their way through.
Mr Sorbara: Tell me how.
Hon Mr Hampton: I would also suggest to you that this committee has a role to play in terms of deciding what some of the terms should be in terms of definition, what their scope should be. This committee has a role to play in terms of deciding whether these guidelines ought to apply to all members.
Mr Sorbara: I am referring to ministers.
Hon Mr Hampton: I only want to remind you that not everyone who is elected to this House becomes a member of cabinet; that the disclosure rules, the divestment rules perhaps should be much different for backbenchers and for members who are not part of cabinet or parliamentary assistants. And that is really what we should be wrestling with here.
Mr Sorbara: But I agree with the Attorney General. I am just finishing my comments, Mr Chairman. I want to agree with him and I want to say to him --
The Chair: Excuse me.
Mr Sorbara: -- that if you could put evidence before this committee, that would help us in our deliberations.
The Chair: Mr Sorbara, please.
Mr Carr: I will be brief. Mr Attorney General, we have talked with the Premier on Monday about some of the things that you have talked about, the purpose of the legislation, which is to build public confidence and integrity. In our discussions with the Premier we did not use the hypothetical situation; we used the situation of Dennis Drainville. The Premier seemed to be saying that it was okay to do it because he did it as a way of conscience. I was just wondering if you agree with the Premier on that matter: that it is okay to break the law if you do it for conscience, or whether you disagree and feel that that is wrong.
Hon Mr Hampton: With respect, I am not sure that that is exactly what the Premier said. As I have read the transcript, what the Premier said was that this is a serious issue that he would want to give greater thought to. You as committee members may want to give some thought to those kinds of situations. You may want to consider, for example, if having been found guilty of a criminal offence ought to disqualify someone from holding a particular cabinet office. You may want to make some comments on that.
I will not go any further into the hypothetical because we can hypothetical ourselves into infinity here. In terms of the political case, you have to acknowledge that an appeal is going forward in this, so I would not comment on it any further than that.
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Mr Carr: Okay. I may have misunderstood but the Premier did talk about the fact that if somebody was doing it for fraud where he benefits himself -- but this was for the greater good, he did not do it for himself personally.
I was just wondering, in situations like that, since the chief in terms of law enforcement here in this province is the Attorney General, what your thoughts are on this situation if somebody, and we will not use Mr Drainville as an example, is convicted. I am not talking about charges; I am talking about convicted of a crime. Do you believe that they still should be allowed to be in cabinet or a parliamentary assistant? Could you give us your thoughts on that, what you would recommend to the Premier, whether somebody should be, then, not allowed to sit or whether you think they should be, maybe?
Hon Mr Hampton: If you sort through this in an analytical fashion, there are charges that I think are not of sufficient seriousness that you would give much consideration to. Someone could be charged with a Criminal Code offence or a trespass offence and convicted; and I think members sitting on this committee would generally agree that that should not bar anyone from sitting as a member of cabinet or as a parliamentary assistant. So there are other --
Mr Carr: So your recommendation would be that we should take some charges and say, "Yes, they are serious," but other charges are not so serious, so they are allowed off or would be allowed to sit in. I think that is basically what the Premier was saying, too, to cut right through it. He said that there were some that were so serious that you should not be allowed to sit in cabinet, and those that are not.
I was just wondering, then, what you say to your crowns who are out there prosecuting people, where you say that some charges are more serious than others. I guess my feeling is that it is going to be very difficult to draw the line. I think I used the analogy: if you rob a bank and then give it to the poor, that might be in conscience. You are not helping yourself, so maybe you could sit in cabinet if you did that. My feeling on this issue is that the lines are going to be very difficult to draw. When you are talking about the public confidence and integrity my feeling is that in order to do that you say that the laws of the land are such that anybody who breaks them should not sit in cabinet regardless of what he is, other than the odd traffic violations which may happen.
So what you are saying, just to get it clear, is that you believe there are some charges that are serious enough that you should not sit in cabinet or be parliamentary assistant, but there are other charges that are not serious enough that you could still be convicted of a crime in this province and still sit in the cabinet.
Hon Mr Hampton: I think you want to be very careful in trying to set this down in a statute. Let's take a real-life situation. There was a member of the British Columbia Legislature, for example, who was convicted of a bank robbery offence, served time in prison, was able to rehabilitate himself, became a member of the community, was elected not only to the British Columbia provincial Legislature but also to the federal House of Commons, and eventually became a cabinet minister in British Columbia.
Now, I think what is important here is that though the person may have committed a serious criminal offence at some time in his life, the public, who ultimately judge us, decided that this individual had rehabilitated himself or had become a credible member of the community to such an extent that he was worthy of election to the provincial legislature on a number of occasions, was worthy of election and re-election to the federal House of Commons, and eventually was worthy in the eyes of his peers and of the then-premier of British Columbia of becoming a cabinet minister.
So I think the members of the committee would want to think about those things very carefully. If you are inclined to recommend that the conflict-of-interest statute deal with these things, there are a number of issues you have to look at: not only the seriousness of the crime but also the degree to which someone has rehabilitated himself. You might want to consider the moral turpitude of the crime; you might want to consider how long ago it was. When you finally look at all of those considerations, I wonder if you might not want to leave those considerations out of the statute.
Mr Carr: What I am looking at is that there are many things where you cannot be involved if you have a criminal record. I guess you still probably cannot practise law with a criminal record. I am not a lawyer but I understand that, so what I am saying is that we probably have higher standards to get into law practice in this province than we do to get into cabinet, I would think.
It just seems a little bit odd to me that we set up different and higher standards for the cabinet, but I will leave that just for a moment and maybe Mr Harnick would like to pursue it a little bit.
Hon Mr Hampton: If I may respond, I think they are different standards.
Mr Harnick: You saw what the law society did in terms of someone who tried to complete the bar admission course. The law society did not permit him to do that, but that is another issue.
What I would like to ask you, carrying on with what Mr Carr was talking about, is: If you have a situation where -- and maybe Ms Hogan is the right person to ask this of because she has been a judge -- you have someone who is convicted of a criminal offence and has not indicated to the court an attitude of remorse, an attitude indicating, "Now that I've been convicted and I am serving the public in an elected capacity, I refuse to acknowledge that what I did is wrong," that would indicate to me that the rehabilitation of that particular individual is impossible. Not acknowledging any guilt even after a conviction and at the same time purporting to represent his constituents in a public capacity, what do you do then?
Hon Mr Hampton: I think we have to acknowledge that rehabilitation is not a one-instant thing. We are talking about this as rehabilitation and I use the words we used. Rehabilitation is something that happens over a period of time, and so --
Mr Harnick: That may be so but I would certainly like to hear from Ms Hogan, because certainly when you are sentencing someone, the idea that he comes before you and acknowledges, "Yes, what I did is wrong," certainly is a factor you look at in terms of sentencing that will probably cause you to give somewhat of a lesser sentence than to a person who comes before you and says, "Even though I've been convicted, what I did was not wrong, and you'll never convince me." Obviously you look at penalties somewhat different in both cases, do you not?
Ms Hogan: As a sentencing judge, clearly there are a number of factors you take into account. The potential rehabilitation of the accused is always a factor, but again, it is only a factor. You are looking at it in the context of the particular crime of society, of the accused, of the victim.
When I talk about victims here in society, various factors take on different levels of importance. For example, is the accused such that he or she is a danger to society, and what does that say with regard to the type of sentence you may impose? Is it the sort of crime where there is a definable victim, and what does that mean in terms of rehabilitation?
Certainly rehabilitation is a very important factor but it still has to be put in context. I can tell you, having had a number of years of experience, that attempting to sentence people is probably, as far as I was concerned, the most difficult element of being a judge and one where I think it is very difficult to set out strict guidelines and rules because so much does depend on the particular case that comes in front of you. The case that you are raising here and the issues there are very difficult and I --
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Mr Harnick: Certainly in terms of an elected official it portrays to the public a certain attitude about the judicial system, I would think.
Ms Hogan: As I said, you have to look at the context, the overall context; you have to take into account the other factors. I do not think it is the sort of thing you can make a blanket general statement on.
Mr Harnick: Now I --
The Chair: Is your question coming up?
Mr Harnick: Is my time expired?
The Chair: Almost.
Mr Harnick: All right. If I could just ask one quick and more relevant question, because I did not think that was all that relevant. Dealing with senior civil servants, what initiatives has your ministry undertaken to start drafting either some guidelines or legislation by way of amendments to the Public Service Act that would put senior civil servants in the same position as cabinet ministers in terms of disclosure and now perhaps in terms of divestment? Can we be expecting to see something?
Hon Mr Hampton: Just to bring you up to date: Staff at the Ministry of the Attorney General participated extensively in the drafting of the guidelines which the Premier has presented, participated extensively in discussions around those guidelines, and as a result have in fact participated in the drafting of amendments. They are in fact before Management Board now for consideration.
Mr Harnick: So we will be seeing some legislation in terms of civil servants and how this conflict-of-interest material will affect them.
Hon Mr Hampton: You will be seeing some policy suggestions that this committee may want to comment on, may want to have a look at.
Mr Harnick: Will we have the opportunity to see them before deliberations end?
Hon Mr Hampton: I do not think so.
Mr Morrow: First of all I would like to thank you and the new Deputy Attorney General for appearing before this committee. Obviously for public trust and confidence I think we as a government have to do a lot better than the previous government's Bill 1. Do you feel that conflict of interest should widen to include all MPPs?
Hon Mr Hampton: I think you want to recognize the significant differences in terms of the capacity to influence decisions that will exist depending upon whether someone is a member, someone is a parliamentary assistant, or someone is a member of cabinet. Frankly I think that is one of the things that you have to wrestle with. I believe -- again, I am going on the perception that I have picked up from the public -- the public appreciates the disclosure of all members. I believe the public would appreciate even wider disclosure in the sense that, being aware generally of the complexity of the financial world, the complexity of the business world, the public would appreciate knowing not necessarily the extent of someone's private interests or the magnitude of someone's private interests, but generally what a member's private interests are, what they relate to, what they touch upon. And in that sense I believe that there should be greater disclosure even for ordinary members of the Legislature.
Mr Fletcher: First let me respond to a couple of things that have been said. I resent the remark by Mr Sorbara that these conflict-of-interest guidelines would in some way lessen the quality of legislator that comes into this building. I think it is rather Neanderthal to be thinking that only good legislators come from --
Mr Sorbara: On a point of privilege, Mr Chair, but I did not say that. I did not say that at all. So if he objects to it, somebody else said it.
The Chair: Please consult before you respond to it, Mr Sorbara.
Mr Fletcher: -- that only good legislators will come from a certain sector of society. I would like to respond also to --
Mr Sorbara: Okay, Mr Chairman, now I would like the member to stop on a point of privilege.
The Chair: Go ahead.
Mr Sorbara: I would ask him to point out in the record as soon as Hansard is available where I said that. It is not my view that one has to have a certain level of assets, or that there are various qualities of legislators. There are independent legislators and there are legislators that belong to political parties, full stop. Some of them are fabulous and some of them do not do a very good job, and it has nothing to do with the level of that legislator's assets. So I resent and regret and ask the member to retract his comments, because they are foolish.
The Chair: Thank you, Mr Sorbara. That is, properly speaking, not a point of privilege, but your comments are certainly on the record and I am sure that they have been appreciated by Mr Fletcher.
Mr Fletcher: When we get the Hansard, Mr Chair; and also the case with Mr Drainville -- yes, he was found guilty, but he also has the right to appeal under the Constitution and I think that is what he is doing. When someone appeals their case, obviously they do not think they have been wrong and they do not think they have wronged society.
Mr Hampton, thank you for being here today. I am just wondering, do you see that the conflict-of-interest guidelines that we have written on this piece of paper -- there are certain principles that lie behind why we have conflict-of-interest guidelines. I am just wondering if you can expand on some of these principles, especially from what the Premier is saying and what has happened in the past.
Hon Mr Hampton: I think the first principle that you have to acknowledge, the first element of the general character of these guidelines, is that they are not intended to replace the existing conflict-of-interest act. In effect, they tighten, they broaden, they define more precisely some of the issues that I think the public has expressed concerns about over the last couple of years.
Frankly, they tell members to look at their own situation in terms of their interests, their holdings; they tell members to look at them carefully in all circumstances. Under the guidelines, I would argue that it is not possible for someone to say by definition: "I have disclosed and as long as I avoid these situations and as long as I avoid circumstances which touch upon the interests that I have disclosed, I should not find myself in a conflict situation." What these guidelines do is to put greater onus, a greater test upon members to look in every situation, to consider carefully in every situation, "How do my past interests, my past private interests, my current private interests touch on the decision I might make here?" Or, "How might the public regard my interests and the decision I might make here in terms of a conflict?"
I think that is a good thing. It is a thing that the public expects of members of the Legislature and certainly members of cabinet and parliamentary assistants, that we have to be, besides satisfying the conflict-of-interest act, that in all cases we have to also be able to satisfy ourselves. The test will be, what would the reasonable member of the public looking at this situation think, what would they expect, what would they conclude? I think that is an appropriate test, and one that will in the longer term put all of us in good stead with the public.
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Mr Mills: Attorney General, I would just like to touch upon the effects or the lessening effects that conflict of interest would have on me in my constituency.
I would just like to touch on an example that came my way that caused me some great deal of concern. A man and wife appeared at my office complaining about their daughter who was sexually assaulted in a school yard. They told the story, and I guess the thrust of the story was that they felt that the policeman who attended at the school had not responded adequately and had asked the wrong questions. Their purpose of visiting me was for me to intercede and call the chief of police and to discuss the conduct of that policeman. I had to say to them: "Perhaps you do not understand that I am the parliamentary assistant to the Solicitor General and I think it would be very inappropriate of me to do what you are asking." So they went away and subsequent to that they wrote a rather pointed letter to me saying that they felt that, as an elected official in my riding, I had let them down, that I had not acted properly.
I had to wrestle with that incident as -- in the conflict of interest, I saw that I would have been in direct conflict with the minister had I done what they said. Subsequent to that I had to say: "There is another avenue you have to go." I thought that lessened my effect as an MPP in that riding through this conflict of interest, my perception of it. I would just like to see your comment on that situation, how that affected them.
Hon Mr Hampton: I think we have to recognize that as members of the Legislature these kinds of situations will come before us all the time. In effect there is an attempt to deal with that within the guidelines. Guidelines 19 and 20 are intended to provide a mechanism whereby members realize the sensitivity of contacting a police officer or a police chief or a justice of the peace or a judge. Members who appreciate the sensitivity of that -- we all should -- are given a mechanism by which the issue can still be addressed and dealt with. That mechanism is essentially to contact the Attorney General with the concern and then ask the Attorney General for the appropriate advice as to how this issue can be raised so that the constituent's legitimate concern can be dealt with, but yet we are very careful to protect the interests of the appropriate administration of justice. That is really what sections 19 and 20 of the guidelines are all about.
In that sense, what the guidelines have provided, I think, are of assistance to members. There is no doubt, parts of the guidelines put a higher duty on us. But some sections of the guidelines also spell out how very difficult situations can indeed be dealt with and dealt with in a way where we all know the rules. There will be equal treatment and the standards of administration of justice will be upheld and will be seen in a public way to have been upheld and met.
Mr Mills: Thank you, Attorney General. I went that route in the end, but nevertheless the perception of the constituent was that I was passing the buck, that I was not dealing with the issue right then. You know the procedure, that subsequently we wrote to you and the parents see that as not being an immediate action to what they perceived as a very serious shortcoming in the way it was handled; but I thank you for answering that.
The Chair: I think we only have a minute left of the government caucus time. One very brief question, Mr Sorbara.
Mr Sorbara: It will be a couple of questions, but they will be brief.
The Chair: One of them, sir.
Mr Sorbara: I agree with the Attorney General that these guidelines are about honesty and integrity and to give that sense of confidence to the public. The Attorney General, both as a lawyer who I guess has practised in criminal law and is now responsible for the administration of justice in the province, I wonder what he would do if one of his senior ministers came to him privately and said to him that there were ministers in his government who were rewarding their friends. What would you do, as the Attorney General?
Hon Mr Hampton: There is in effect a process whereby those kinds of issues, allegations for example, about a member of the Legislature, allegations about a member of cabinet, are referred to the deputy minister and the assistant deputy minister for criminal law.
Mr Sorbara: So you would say that is a criminal allegation?
Hon Mr Hampton: Not necessarily, but that is probably --
Mr Sorbara: It could be.
Hon Mr Hampton: That is probably the most appropriate place for it to be sorted out and that, in effect, is the process that is in place. They then, as crown law officers, confer with the police or with whatever other appropriate investigative authorities are there. In that sense, there is an avoidance that there has been political interference or political input into a law enforcement investigation where ultimately there will be a charge.
Mr Sorbara: If that minister, that senior --
The Chair: Thank you, Mr Sorbara.
Mr Sorbara: Mr Chairman, I have a couple more questions on this line and I am wondering if the Attorney General --
The Chair: Mr Sorbara, you took all of your caucus's time plus some, and now you took some of the government caucus's time. I think you have had quite enough questions.
Mr Sorbara: May we invite the Attorney General back for some time? Is the Attorney General in agreement with that?
The Chair: If that is the wish of the subcommittee, I am sure that could be done. Could we recess for two minutes, please?
The committee recessed at 1117.
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The Acting Chair (Mr Fletcher): Thank you for being here this morning, Mr Elston. Please sit down, read your name into the mike and be relaxed.
Mr Elston: My name is Murray Elston and I am here as the first, I think, former Liberal minister who is sort of given in trade. I feel like I am part of the currency of this committee's activities. I think they get one minister from the new government in exchange for my hide, which I am about to present to you now.
I am not exactly sure what I am supposed to talk about, except that we did speak very generally last week, when I was a member of this committee, about some of the things about conflict of interest. I am prepared to answer a whole series of questions. I did express a purely personal opinion that, as people look to purify the political process or the people who are involved in politics, it is becoming apparent in my view, in any event, that the pendulum has swung quite far. While in days gone by there was very little, if any, surveillance or even care, I suspect, or even thought about looking into individuals as closely as it is now, it has become a very minute examination. I am speaking very personally because I am not here in the sense of representing the party, but merely representing myself as a former minister, and also to provide you with what detail I can about my position as chairman of cabinet, to explain some of the issues that we faced as a government in running a meeting; not to tell you what the meetings were about so much, but just to tell you what sort of problems decision-making came in contact with as we tried to adhere to the letter of the law.
In any event, I believe it has gone quite far and I would express a personal opinion that divestment is a particularly cruel and harsh sort of exactment on people who, even with the best of intentions, may not last any longer than the next election. The year 1987 saw a huge turnaround in members, new members, dedicated members, people who worked very hard indeed and they worked as though they expected to stay here for another term. Of course, 1990 showed that was not possible. Some of those people were ministers and if some people, having been elected in 1987, had had to sell everything they owned to convert it into cash or something similar to that so that they could become a member of the executive council or a parliamentary assistant, so that they could be seen to be pure or whatever, they could be, at this point, trying to figure out how much money they had left over to try to buy back into their interests.
I find that a very difficult situation to put a person into. I know some of you have run more than once and ran again this time and were elected, but for some people, running the first time is an extremely difficult decision personally because you have so many other issues to deal with. Some of them are family, which I know about full well; some of them are about the security of family; some of them are about the amount of time that you spend in dealing with your constituents and your own personal life. You often-times let your personal financial affairs take a second or third seat because that is not what you are in this business to do. You are here to look after the interests of your people, trying to make a contribution, from your own perspective obviously, to the betterment and welfare of the province.
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So in any event, I express that concern that we are not here that long, even the longest-serving. I guess right now that would be Mr Nixon. He has been here for about 28 years, I think, since 1962 -- 29 years now. But as a farmer from out in Brant county, he has been able to retain his land base, as it were. I came here as a newly acquired partner in a law firm in 1981 and I ran. In fact, Sunday marked the 10th anniversary of my first nomination for candidature for election to the Legislative Assembly. I was not as hard-pressed as some might be because I was relatively new and I did not have a lot of extensive interests and otherwise; but for those people who have been in business or who have taken a lot of time to work at various places and who have accumulated some capital -- because that is the way they are and they have decided to ensure their future, not basically because they do not have a pension plan, but to put it into an investment somehow so they can in the future -- making a decision to divest at that stage of life where you are going to have a hard time getting into a second career is a very onerous and rigorous operation.
I do not know why we would want to prevent as open as possible a flow of membership in the Legislative Assembly. Anybody should be able to run, and they should not be penalized for running. The "undue hardship" clause I find kind of interesting because it is almost impossible to put a tag on. I guess if somebody comes in and says: "Gee, I just can't do this, boss. It's unduly hard on me and my family. You know, we're used to living like this, and if I have to sell everything I am going to take a discount of so many percentages on my asset base, and if I'm out of here in two and a half years or four years or if, boss, you don't like me in three months, then it's going to be a really rugged exercise to put me and my family through," because this business, unless you are totally solitary, is not a one-person show. This is a business where it is an extended family. It does not even stop with your spouse and your immediate family members; it extends a whole series of leaps and bounds right through your entire family structure.
I was interested this past holiday season when I was talking with your government whip, Shirley Coppen, who said that she found it difficult. Every year she has been able to prepare in a certain way for the holidays and this year, of course, she could not. Of course, that is what people in this business find. That conflict in time alone is enough to drive you up the wall, but if you then have to go ahead and divest your assets to get into the business, it makes it even that much more difficult.
What can I tell you about my role as Chairman of Management Board of Cabinet? It was a wonderful cabinet. They were bright, wonderful people, the most intelligent group of people ever found or assembled in one place in Ontario. Can I tell you anything more? Is that too much already?
The meetings are very interesting because the people who are gathered around the table -- and even the parliamentary assistants will know this; I think most of you are on the government side -- as you go into meetings, it is well known, when you come together after a few months of meetings, where your interests are. You know each other fairly well, in fact, sometimes too well, as you get into those five- and six-hour meetings. Everybody knows a person's bias, both his philosophical and his background rearing and the biases that come from that. So you come as a collective group to anticipate where someone's point of view might arise from. It would not be unusual that if a particular person, let's say someone who owns a farm, was making a point on how poorly done-by the agricultural sector was, there would be a whole series of small catcalls around the table saying, "Bad results in the bean field this year, were there?" And all that stuff is well known and understood so it was very difficult, and in fact is difficult, for somebody to come in and participate in a decision which others knew would solely restrict the benefit to an individual who owned that farm.
You know each other, and this business is one where an individual is viewed by the broader group of society. When you go back to your constituency, it would be unusual if people, having elected a member whose buildings were seen to be run down and looking unusually poor, in six or eight months found that the house was rebricked and the outbuildings were completely painted and renovated, and the tractor, which was a 1949 Case D, was replaced by the most modern John Deere -- not to do advertisements for any of those two organizations -- but you can understand that the public presence of a member in his or her constituency is such that the electorate gets to know what is happening if there is something untoward occurring. Now, each of you knows that we are paid very highly in this business; in fact I have heard from members of all parties about how highly we are paid, and you can understand that since our pay is known, people can anticipate what you can reasonably afford and not afford.
That brings me to another issue, I guess, which is that you know in cabinet, or you know as a PA, or you know even as a Legislative Assembly person how the person thinks or talks. There is a supervision there. If a person decides that he or she is going to be dishonest, for whatever reason and whatever propels a person into that, whether it be some kind of financial hardship or difficulties which are unseen by any of us, if he or she wishes, there will be found ways. No matter how tightly you turn the screws down on everybody, and how much you want to be declared or whatever, unless you provide the Conflict of Interest Commissioner with an investigative unit in a, to use the old words, "Big Brother" presence, you cannot guarantee the sustainability of purity, if I can put it in those words.
Each of us is, in my view, honest and not to be presumed to be dishonest; but there are inevitably some cases where people will get into issues of conflict. Although I have talked mostly about financial matters, the conflict can arise from other relationships: providing inside information or providing influence by the propelling of information to friends or colleagues. They need not be family; they need not be relatives; they need not be associates in business. They could be merely friends who get that one step up on the others. That, likewise, is a conflict, and in some ways is more subtle, and in many more ways more grievous, because it delivers power into the hands of people at the expense of the social order in general.
I think I have said probably just about everything I need, other than to say I should finish up on my cabinet chairman's role. I found it difficult sometimes when we were talking about issues which required some expert material. I do not know whether any of you here have seen the cabinet books, but you get a book full of all kinds of stuff and it has interesting writing on it. Actually, maybe I should just go down the hall, if you would let me. I could get one of the cabinet books out of the committee room and bring it back up or something. The Chairman does not want that, but anyway it has got all kinds of writing in it. One of the best defences for politicians is not only the grass-roots visitation to his or her constituency, but it is in fact bringing to bear his or her own common sense, if you have any, in relation to the particular issues that you are dealing with, on the matter so that you are not taken in by people who get really narrow in their writing of the issues.
If a person has experience in an area, and we had several who dealt with, let's say, forestry, it was a concern that those people, because they were intimately knowledgeable, might appear to have a conflict of interest if they sat in too long on any decision which related to the forestry side of things. What it did was it removed the people who were most knowledgeable among us as a member elected to the Legislative Assembly from participating in the decision, and I found that frightful. I found it difficult that a resource was wasted in that way; and from my point of view anything that we could do to clarify those circumstances would be quite helpful. The issue of how far a person can benefit or not benefit on the basis of decision-making is a very interesting one, and I think that you could take yourself far along the continuum and end up with some very difficult or almost impossible questions to answer for yourself.
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Just one interesting question, just before I wind up: Where does a person's interest stop when he or she is doing things on behalf of a political party, and where does it start? Because, of course, the welfare of the political party may very well predict the welfare of the individual member. So think about it every time you say you are doing something for the New Democratic Party or the Conservative Party or the Liberal Party, and "It has nothing to do with me." I will tell you, if things go well for the Liberal Party of Ontario, things will go better for Murray Elston, probably in terms of chances of becoming re-elected.
That likewise should bring to your attention the concerns around the Red Hill Creek Expressway, for instance. The strengths of Richard, whom I have a great regard for, because he was elected just after I was in 1982 -- I was elected in 1981 -- but if he strengthens the organization through the party structure in Hamilton, there will be a stronger election base for Richard and the rest of the NDP in Hamilton, for instance. Is that a conflict of interest, the conveyance of that information at the expense of others in that social order? Is that a problem, and how do you police that? So do not get yourselves caught up just in the issue of dollars and cents, because power comes in so many other different and subtle ways which are equally as frustrating to an open and democratic society.
The Acting Chair: We have approximately five minutes per party.
Mr Elston: I should have talked another five minutes.
Mr Sorbara: I have three short questions. The first is, I want to ask Murray, during his tenure as chairman of cabinet and managing the deliberations of cabinet, did you ever get the sense that any minister there was trying to further his or her private interests or his or her private bank account?
Mr Elston: No, there was nothing in those ways at all. You are really so wrapped up in trying to promote the interests of the organization that you are leading. In my case, I have been Minister of Health; you were Minister of Labour; Gordon, I guess you are associated now with the Solicitor General. But your interests now are so single-mindedly wrapped up in trying to get to know, particularly in the early going, where the washrooms are and where the briefing books are and where the good information is and where the right levers are, that you are taken into that; and people are really trying to promote best interests.
I was interested in Gordon's example of how you get caught innocently in this big dilemma about, "Who do you work for?" You are elected by your constituents and yet you have this sort of semi-executive, quasi-executive position as parliamentary assistant a number of times when people will get into those types of things -- but none of them when people were sort of saying, "If I make this decision this is going to be better." None of that stuff, financially or otherwise.
Mr Sorbara: I will always remember the day in cabinet when, up until 10 o'clock in the morning, our colleague Christine Hart, the former member for York East, was participating in a cabinet meeting until 10 o'clock and at 11:30 there was an announcement that she had resigned her cabinet portfolio. It reminded me that through five and a half years as a cabinet member I felt that, at any time from the day after I was appointed, the phone could ring and it would be the Premier or someone from his office on the other end of the phone saying, "The speech that you just gave, or the remark that you just made, or the allegation that has just been made against you is such that I'm going to have to ask for your resignation." Would you agree with me that each of us felt like we served in that capacity day to day, minute to minute, and a single mistake could result in the requirement to resign?
Mr Elston: Yes. I was not too preoccupied with that, but I think the sense was that we were always reminded. Certainly Christine's presence up till 10, and then her departure and then a final departure announced at 11:30, had quite an impression on all of us. I think that we all realize that if the Premier believes -- or, even worse, if the Premier's staff believe and then counsel the Premier -- that you have done something unusually bad, that you are subject to dismissal. That is there.
I do not work like everybody I guess does, but I was always occupied in doing the job and I always actually got good advice from a senior fellow when I first ran in 1981, really good advice. He said basically "Work hard," but he said, "Do what you think is right and then you will know at least one person is happy," and I have actually taken that as pretty good advice and that is how I approached it. But you were reminded that it was not necessarily within your own hands as to how long you survived in the executive council, and it is not how well you do necessarily in 1994-95 that your future will be determined on.
Mr Sorbara: The guidelines that the Premier put forward provide for divestiture. In his statement in the House he provided for a divestiture within 60 days. My question to you, Murray, I guess in your capacity as a lawyer -- I am not sure how much corporate or commercial law you practised --
Mr Elston: Wingham had a huge corporate base in those days. It is not nearly so big now because council maybe is not as good, I do not know. But they are closing plants left and right, actually.
Mr Sorbara: But it seems that even the smallest of business interests, whether it was an interest in a hardware store or the interest in a small contracting firm, if put on the market, could take a year or perhaps two years or even more to sell, depending on market conditions and the terms that were needed in order to survive. Is that not your experience in dealing with --
Mr Elston: Yes. It is a difficult thing for people to do. It is particularly more difficult for a person who owns a small business, as opposed to having large assets. For instance, right now is a particularly good example for us to take to heart. Having been elected, there are a number of people I know who are ministers -- not a number of them, but some who I know who have small businesses that are getting smaller, first of all, because they are working down here all the time. How do you sell a going concern when the going is getting tremendously more difficult and when, in fact, maybe in 10 months it might be a little bit better, a little easier to sell it?
Mr Poirier: Or a lot easier.
Mr Elston: Or a lot easier. I think Jean is completely right. I find it very difficult where a person basically lives his or her life solely -- the hardware business is a good example -- in that shop from maybe 6:30 in the morning when they are doing the repairs till maybe 8:30, 9:30, 10 at night. I do not know why they give up all those luxuries to run as a member, but people get committed to making some changes. They are offended by a regulation or they do not like the way this is working or they have had concern about education, and it has nothing to do with that person, but all of a sudden their entire family's existence -- which is really what small business is about, it is a lifestyle, just like farming is -- is to be put on the block. There are all kinds of people who go around looking for bargains and they love to see people who are in a pressure situation. You will be able to sell it, but I will tell you, you give away an awful lot of your life in the meantime; and that is what is difficult about this thing and that is why it will, I think, be more onerous for anybody who thinks that they have an executive position in store for him or herself or even a PA's position. That makes it pretty difficult.
Mr Sorbara: And you do not get it back if you get thrown out of cabinet --
Mr Elston: In fact it becomes more difficult, because what happens is that when you are under pressure they buy at lower prices, and when you want to come back into business -- because you have to work at something after this life, generally; there are only maybe one or two people who --
Mr Sorbara: Except for you, Gord.
Mr Elston: -- who are in an exceptional and very independent situation -- they are going to ask for top dollar when you go back out, and so it is difficult.
The Acting Chair: Is that it?
Mr Sorbara: I am done, yes.
Mr Elston: Were those only two questions?
Mr Sorbara: There were three, two and a half.
Mr Carr: I just had a quick comment. I thought it was a good analogy, it seems, with the pendulum swinging. I think in the past the perception has always been that you had to be very rich and influential to get into this place, and now it seems to be swinging the other way. I was also very interested in your comments of -- not even just personal monetary, but really your job does in a lot of cases depend on what happens with your party, and by furthering your party you are really furthering your own career. That was just one of the things that I wanted to --
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Mr Elston: I think most politicians, by the way, understand that. If you are partisan, there is a corporate existence there, just as there is a sort of corporate existence for government. A very interesting episode in my life was when I was the environment critic and Andy Brandt, who was the leader of a party whose name I have forgotten at the moment -- he was then the environment minister for that party. We were down in the States, and Brian Charlton was with me and Andy. Andy had to go off and sign some agreement with the governor, or whoever, of Michigan and left us down in, I think it was, Springfield. I was seen to be the official opposition rep, the ranking Ontario politician, and I ended up having to defend Ontario's environment record, which was a little tough at the time, against this onslaught by some very high-profile US senatorial people, so I was the interviewed person and Andy never forgot it.
There is a corporate existence to us beyond just the partisan in that stage. You kind of switch your gears, if you can understand what I say; and when we go outside of Ontario there is an Ontario existence which we would promote. In Ontario we are probably going to break back into the partisan existence just a little bit more, and then as members of the Legislature we have this sort of collegial existence which transcends the partisan. It depends what the issues are that you are dealing with at the time. It is a very, very fine line that we walk all the time as to what is happening. There is no question that, when I go out and speak to a group of citizens, I am not going to be promoting the New Democratic Party necessarily, although I have said some nice things about some members who will remain nameless because this is Hansard-recorded, of course. But it is a fine line. We have a series of obligations and duties and if you are pursuing those there are going to be some benefits: We are going to get elected if we do a good job.
Mr Carr: In your capacity as a member of the Liberal Party -- and I guess you have had much occasion to try to recruit people to run over the past few years -- has it been a big stumbling block, do you run into a lot of people who say, "I am a big Liberal, for whatever reason, and I want to run"? Are you finding many people that are saying, "I am not interested in running because of some of the things that are already in place"? Are you running into a lot of that at all?
Mr Elston: I think most people were like I was. When I ran in 1981 I was out of law school about four years, a little bit more, had just become a partner in a law firm, purchased a house a year or so before that, and was quite happy. People came and said, "Will you run for us?" because our sitting member in those days, Murray Gaunt, who was extremely dedicated and a great member, had decided to retire. If people had asked me in the preceding December, "Will you run for the nomination in February?", I would have said, "No, I was not interested, we had a good member," and all that sort of stuff. When it comes right down to it, people sort of come up to you and say, "You are a Liberal, you know that Murray Gaunt is retiring and we think we have a better chance in winning with you, will you do it?" That was it, I did not know anything, I had no idea what the pay was when I ran, I did not know what the benefits were. I had never been in the Legislative Assembly of Ontario; I had been around the outside of it, I thought I could do something and I thought I could do a good job. After that, that was totally it, I had no barriers.
Right now, if you asked a person between 1990 and 1994, when the election rumours start getting a little hot, "Are you going to run?", I suspect you will find people will say: "No, who wants to do this, who wants to have your public life profiled in a way that it is? Who wants to be drawn out all over -- who wants to suffer the chance of divesting everything I have worked for 35 years or 25 years to build up, and my family?" They would also say, "Who wants to go through it and have everybody dump on you?"
Right now the biggest impediment to running politically, I would suspect, other than for the real diehard partisans, is the fact that the public is not particularly keen on politicians, and even though some people were elected as non-politicians in 1990, once elected you are all politicians and will be held accountable in that sort of haze that has cast itself all over politicians. That will be the biggest impediment at the moment, I think.
Mr Carr: I understand what you are saying because my wife is still trying to figure out what to tell people I do for a living, because she is too embarrassed to tell anyone I am a politician. I ran under the same thing and so it is very difficult, but I appreciate your coming forward --
Mr Elston: That is a very important part of this. Your question was a good one, because you do not want to raise the profile of the impediments to the extent that it takes away the ideals that people have, that they base their opinions on, that they want to promote in public office. This Legislative Assembly is a big meeting place where our society is trying to grapple with some of the biggest issues of the day. If we want to propel everybody into believing that we do nothing but sit around here and ask ourselves if one of the other members has his or her wallet open to get money, it changes the whole aura of this meeting place. That is what this is, it is a meeting place.
As you talk about conflict of interest, you have to understand that politics is the art or science -- I would say art, probably -- of resolving disputes with respect to interest. There are not any of us who come here without interest. You cannot run a place of people who will make good decisions if you are disinterested. It just does not work. We all have some kind of interest. You cannot come up with a group of people with the best interests of society at heart as they sit in that meeting place to resolve issues if you demand that everybody be devoid of any sort of interest. It is not just financial.
Mr Mills: Thank you, Murray. You came here and you told us, really opening yourself up honestly, about how you felt about it, and I appreciate that. I know that all of us are suffering from this political business. One day I was at home and my wife said, "I have not gone and got the mail today," and I said, "Well, I will slip up and I will get it on my bicycle." So I was cycling up to the village and the first guy that saw me said, "We are paying you to work for us, what are you doing here?" It has made me sort of paranoid now that I do not go out on my bicycle. I was going to do all kinds of things. I was going to buy a new car and I think, well, they are going to say, "Look at that, he has just got in, he has got the money and he has got a new car." I was planning to do that anyway, and I am scared to death --
Mr Elston: Well, that is what you tell us for the public record now.
Mr Mills: No, no. I have a philosophy, Murray, that not only do we have to be honest, but we have to appear to be honest in everything that we do. To get to the question, I possibly am here on the most peculiar of quirks. I took my wife to the dentist and it was hot and I walked around and asked a few questions. We have often thought, if she had not gone to the dentist that day this would not have happened, and that would not have happened and we would be in Florida now, nice and brown like Dave Cooke.
I did not have a business to get rid of, but I am thinking of my colleagues who have gone that route, as parliamentary assistants, to get rid of a business, realizing the tenure of a parliamentary assistant is precarious, to be generous, I would think. In cabinet, in your previous role, did you know or did anyone indicate to the Premier of the day, Mr Peterson, that they could not accept a position or become a parliamentary assistant because of the implications of giving up -- I had a friend in the last government, Bruce Owen, whom you probably know; we served on the council in Barrie for years together, and that gentleman lost a law practice over it. I am just wondering how --
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Mr Elston: Actually, Bruce is a good example of what I just talked about earlier where you have to -- I mean, it is very difficult to keep two going.
The Chair: For the purposes of Hansard, would you identify this personage?
Mr Mills: Oh, he was the Liberal member for Simcoe Centre. Paul Wessenger took his place. Did you know of anybody that refused to hold office because of these implications?
Mr Elston: Of course, we did not have a divestiture, but I can think that after people went through the process of having to set up trusts and other things, some of our members who were more extensively connected in business incurred tremendous costs in legal fees, which we talked a lot about last week in another area, legal fees and then accounting fees. And then they had, in setting up their trusts, the expense of maintaining the trust companies' involvement as a trustee. And nobody pays for that. It is paid for, hopefully, out of the assets. You hope maybe they will do a good job for you and they can pay it so it is not a net cost. But it is a net cost.
I felt quite badly about some of the attacks on a couple of our colleagues who resigned. Some of those people who were accused, I felt, unfairly, incurred huge, expensive legal bills to do things that really did not have to be done. And there was an unfairness about it and there was a tenacity, a pursuit which I felt hard-done-by.
Greg mentioned before, did you feel that you could lose your job at any minute or that type of thing, that you could be out the door? I was not so affected by that as I was affected by what appeared to be the pleasure of the hunt that I saw in that Legislative Assembly on some of my colleagues who were good people, who could have been making piles of money doing other things, and they ran and were elected for a base pay of $41,000 when that did not come close to what they could have been doing. It was that cost. And that, I think, affected me most.
I did not know of people who actually said to the Premier, "I'm not going to serve." I would not be party to that in any event. That other I did know about --
Mr Mills: I am trying to get some feedback about this.
Mr Elston: Sure.
Mr Mills: And I just wondered, you know, if after the fact, anybody said to you, "Well, I could have been this and that, but I didn't."
Mr Elston: No, I think at that point it has gone beyond. There may be a personal confidence given to somebody who is much closer, but none that I knew of.
The Chair: I think we all know how you have been forced to divest yourself of your retirement in order to seek public office.
Mr Elston: I know. The very interesting problem, though, associated with this is that we tend to think about stocks and bonds, and we tend to think about real estate which yields income or a business as yielding income. Technically, though, if you are going to divest yourself, ought you not to be taking yourself right out of every pension plan? Should you not take that out and put it into a blind trust or something, divest yourself of all activity which is in OMERS? OMERS is, in a big way, in the real estate business in downtown Toronto. The way Toronto goes, the better it is going to be. The public service pension is in real estate, and it can now, like everybody else, go outside of Canada; and eventually up to 20% of their stocks and bonds can be held in assets in the US. We are dealing with legislation all the time that affects the pension plans of teachers and public servants directly. But we also manage -- at least we develop all the regulations for -- all the private pension plans in Ontario. So if you happen to have a pension plan with GM, the rules and regulations made by somebody in cabinet or even as a PA in the Ministry of Financial Institutions can be very beneficial, but beneficial in general, to the whole group in there; but you could be one.
I like Gord's example. I was going to buy a car, but I felt I should not. I think that is a very big problem. But there is also this other fine line, because people do not expect their member to appear to be impecunious. So you have to develop the happy medium somewhere.
Mr Carr: Buy a new bike.
Mr Elston: Absolutely.
The Chair: Thank you very much, Mr Elston. Some excellent comments.
IAN GREENE
The Chair: I would like to call upon Professor Ian Greene from York University. Professor Greene, welcome to our committee. As you know we are discussing conflict-of-interest guidelines and we look forward to your input. We have approximately half an hour, although things do tend to stretch out if people get terribly interested. So please feel free to start whenever you are comfortable.
Mr Greene: I understand you would like me to make a few remarks and then you would like to fire some questions at me. Lisa Freedman mentioned that she had problems with an article that I had written on conflict of interest and the Constitution for you. Unfortunately, the editors screwed up and the final paragraph was incomprehensible. So I have got copies of what the final paragraph should be.
The Chair: I think it would be somewhat taxing if you were going to suggest that politicians read the entire article.
Mr Greene: I used to be a minister's assistant in Alberta so I did the reading for my minister.
Just one general remark following on from what Mr Elston said: It seems to me that part of the problem -- and we are dealing in perceptions when we are talking in conflict of interest -- is that the general public does not understand how the political system works very well.
I teach political science and public administration at York University, and every year after my students take a basic course, say, in Canadian government, they say: "Why didn't we learn this in high school? Why didn't they tell us?" One of my students was so concerned that he wrote a letter to the Ontario Minister of Education saying, "Why don't you teach us these basic facts in high school?" She wrote back saying, "There are many optional courses which you could have taken." I am sure it was an assistant who wrote that. But anyway, I think that dealing with conflict-of-interest rules and so on is part of the problem; the other part is making sure that we have an educated public.
I am going to throw out perhaps a rather different definition of conflict of interest for your consideration. I think that a conflict of interest is a situation in which a public official cannot reasonably be expected to act impartially because the situation involves personal considerations. Often these personal considerations involve the possibility of personal financial gain or financial gain for a family member. But they might also involve other factors, such as the desire to do a favour for a family member or a friend or a party worker, or the desire to improve the financial resources of a political party.
The purpose of conflict-of-interest rules basically is to promote impartial decision-making in the public sector. If a public official is in a position to make a financial gain by exercising public responsibilities, he or she could not be considered impartial. Similarly if a public official is in a position to do special favours for friends, he or she could not be considered impartial. Impartiality is important in the western democracies because of our belief in social equality. Everyone has a right to be respected and to be treated as an equal. Therefore we want administrative decisions to be made impartially. We do not want public officials to enrich themselves, that is, to get special advantages at the expense of the public. Public officials such as cabinet ministers are there to serve the public, not to enrich themselves or their family or their friends or their party.
The principle of the rule of law developed from the principle of social equality, although our concept of social equality has broadened considerably since the rule of law became a constitutional principle in England back in 1688. The rules prohibiting conflicts of interest have actually been around for a long time, but most of the old rules concentrate on punishing personal gain from public office after it has occurred, or preventing the most obvious conflicts of interest such as a cabinet minister arranging a contract between his or her own private company and his or her department.
The Canadian Criminal Code has always prohibited cabinet ministers, federal or provincial, from the granting of public office favours in return for gifts. Every province has a Legislative Assembly act which prohibits members of the Legislature, including cabinet ministers, from entering into contracts with the government. And these provisions have been carried forth into the new conflict-of-interest acts which have been passed during the last 10 years. Every province now has a special conflict-of-interest act, except for Saskatchewan, Alberta and Quebec.
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But the old rules were fairly effective, I think, in preventing the most serious corruption by cabinet ministers and members of legislatures. But beginning in the early 1970s, Canadians became concerned that the rules did not go far enough. There were a number of instances where cabinet ministers did not contract with the government or make personal gains, but in which people questioned their impartiality because of the possible impact of their administrative decisions on the businesses they were associated with, or that their friends were associated with. People also began to object more strenuously to ministers who did special favours, not just for themselves, but for their friends and their relatives and party workers.
Another issue which became prominent concerned cabinet ministers and public officials resigning their positions and then the next day accepting a well-paid position for a private company which could make use of the official's privileged knowledge. I think that this increased public concern, beginning in the 1970s, resulted from two factors. First of all, there was more demand for social equality as a result of the civil rights movement in the 1960s and the 1970s. Second, I think the Watergate scandal created a demand for tighter political ethics rules in the United States, and this had a spillover effect in Canada.
So in addition to the traditional conflict-of-interest rules in the Legislative Assembly acts and the Criminal Code and so on, governments began to create conflict-of-interest guidelines for cabinet ministers. Trudeau issued guidelines for his cabinet in 1974 but they were not actually made public until 1979, when Clark become Prime Minister. Conflict-of-interest guidelines for cabinets appeared in most provinces in the 1970s, including Ontario. The emphasis on these early guidelines was on divestment: Get rid of any assets that might get you into a conflict-of-interest situation. Other assets had to be disclosed, either confidentially or to an official.
The guidelines were usually written in fairly technical legal language, and after every conflict-of-interest scandal they were beefed up and they became more technical, so that anyone would have difficulty following them, including most lawyers. Not only did ministers have to avoid conflict-of-interest situations, now they also had to obey the guidelines. A number of ministers violated the guidelines by not fully disclosing their assets. I think this was often because the rules were so complex that they did not understand them. Every time the minister broke the guidelines, the guidelines were beefed up some more and there was more chance to break them.
Interjection: A vicious circle.
Mr Greene: A vicious circle, yes. Of course, we are in a situation in Ontario now where we have a Members' Conflict of Interest Act, which, instead of the old rules, instead of emphasizing divestment, emphasizes disclosure and recusal -- that is, members must disclose their assets to a conflict-of-interest commissioner. The ones that are likely to get them into trouble are publicly disclosed and they are expected to withdraw from situations that might be conflict-of-interest situations, rather than divest their assets, in most cases. I think this new disclosure-recusal approach was a response to the fact that the near-divestment of assets did not seem to be enough and, as Mr Elston mentioned, sometimes discouraged people from participating in politics. I think we can regard all of these conflict-of-interest rules as experiments for promoting higher levels of impartiality and equality, and so periodically they have to be evaluated to see how they are working. Are they really serving the function for which they are intended?
The other element of Ontario's 1987 legislation, which came into effect in 1988, was the creation of the Conflict of Interest Commissioner. This was the first type of ethics commissioner created in Canada. I think it is a marvellous innovation. I think that it helps members to cut through the complexity of the rules. The commissioner is there to explain what they mean and to explain what a conflict of interest means. British Columbia has recently followed Ontario's lead. I understand that a number of other provinces are considering having such a conflict-of-interest commission, and the federal legislation, which was introduced in 1988, would create a three-person conflict-of-interest commission. That legislation has not yet been passed and probably will not be unless there is another big scandal.
The Premier was critical of the disclosure-recusal method of preventing conflicts of interest in the recent legislation, so he has introduced some guidelines that I have had a chance to look at. When I look at them, it seems to me that they seem to be very sensible. They recognize that higher standards of impartiality are appropriate for cabinet ministers.
Legislators in general need to be impartial. They cannot use their office for personal gain, they are not supposed to use their office to aid their friends and family members and so on. But ministers have additional responsibilities under the law. They have to make impartial decisions under the law. So it is reasonable to suppose that higher standards are required of ministers because they wear two hats.
I have just a few suggestions because that is what political scientists are paid to do. It seems to me that the fundamental principles in the Premier's guidelines could stress the importance of impartiality and equality, because it seems to me that that is what the rules are all about. If cabinet ministers focus on this issue, that, "When I'm making decisions under the law, I have to be impartial and I have to appear to be impartial," the rules are all there to promote that principle, it might help them to follow the rules more easily.
It seems to me that consideration could be given to having the guidelines cover not only spouses and minor children, but what about former associates, former business associates, friends and other relatives? If these others are not mentioned, there are some potential loopholes.
I think the section on judges and administrative tribunals is excellent. It needs to be in the guidelines.
I have some questions about whether it is really necessary to divest to the extent that the guidelines demand, particularly with regard to land. I know that under Premier Davis cabinet ministers were required to divest themselves of land because conflict-of-interest situations often developed with regard to the purchase and sale of land. Once again, I think we have to regard the rules as experiments to promote impartiality. Under the old rules, where you did not have to divest yourself of land but you had to disclose your interests, were there any serious breaches of the rules? Were there serious conflict-of-interest situations that developed? I think Mr Justice Evans would be in a better position to advise with regard to that than I could.
With regard to guidelines in general: At one point or another, I think every Premier in Canada has had guidelines. One of the problems is that the Premier enforces the guidelines, and what happens if the Premier is accused of a conflict-of-interest situation? Who then enforces the guidelines? This is where I felt that having a Conflict of Interest Commissioner in Ontario was far better than in some other provinces and in the federal sphere where you had the first minister trying to enforce the rules.
The other point that I would like to make is that I think, in general, Ontario's conflict-of-interest rules are the best in the country even without the guidelines. I think the guidelines make them even better. They are by far the strictest in the country right now, but it is important to dovetail the conflict-of-interest regime with rules on election financing. Perhaps too much attention is being paid to making the conflict-of-interest rules absolutely perfect and not enough attention is being paid to conflict-of-interest situations that could develop as a result of campaign contributions.
Ministers must not only be impartial with regard to situations in which they can gain personally, and with regard to their family members and their former associates, but also with regard to people who have contributed to their party. So those are my remarks.
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Mr Poirier: I am very glad about your observations as to what we already have now and what is proposed for the future in Ontario. After hearing Murray Elston's insight as to what he has lived through, and after hearing what Gord Mills, even though he has been recently elected, is already living through, as to perception of what we are and what we have or do not have, obviously what Gord Mills has lived through, without even being a minister or member of cabinet, is true for all of the members today because of spillovers elsewhere. When I see a politician somewhere being involved with this and being accused, like some of the former Liberal cabinet ministers were in the past, even elsewhere outside of Ontario it always has a spillover. People always put all of us in the same boat no matter which party we belong to. We are all guilty for a lot of people unless we prove ourselves innocent.
I like what you said about the divestiture because I believe that even if you do not have a darn thing, if you get rid of everything, if people want to perceive that you are in a position of conflict of interest, they will do so regardless of where you fit, what you have done or not done, what you are, who you are. Would you be able to evolve a bit further as to that aspect of perception? To what level should we be victim or afraid of what people perceive if they choose to perceive something negative independently of what is there or not there for us?
Mr Greene: You have got to sort of distinguish between the role of the cabinet minister as trying to promote the party's platform and therefore hiring assistants who have been good party workers and so on -- these are political types of decisions -- and decisions that are made under the law where the minister must be impartial. He cannot be perceived as promoting the party or giving favours to friends or promoting his or her own personal interests. So when the minister is making decisions under the law, or involved with situations that are under the law, I think the minister should be constantly asking, "Could I possibly be perceived as being partial in this situation? If so, what steps could I take to make absolutely certain that I appear to be impartial when I am making these decisions, that I actually am impartial?" I think if that question was first and foremost rather than have it follow 20 pages of rules, ministers are likely to avoid these embarrassing situations.
In addition, I think opposition members, when they are making accusations of conflict of interest, have to be very careful about the damage this could do if the accusations are wrong. I think it would be very useful, before such accusations are made publicly, if for example they check with the party whip: "I suspect that so and so is in a conflict position. Would it be wise to make this public?" Several heads are usually better than one.
Mr Poirier: One more very quick one. I really do not want this to sound, and it is not said in a partisan way, but you mention that the law as we have it right now is Canada's strictest, and that seems to have been your perception also. If you had a mandate to look at Ontario's situation right now, what would you do with it? Would you leave it? Would you make it tougher? This is very non-partisan. I do not know what your affiliation is, but how would you feel about it if this were given to you?
Mr Greene: I do not have an affiliation, by the way. I have voted for every major party at some point in my career. Not in the same election, though.
Mr Poirier: If this was solely on your shoulders and your mandate, what would you do with it?
Mr Greene: Can I answer that question by backing up to the situation where we had the new legislation? It emphasized disclosure and recusal more than divestment. As soon as that legislation was being considered, one of my former professors at the University of Toronto, Ken Bryden, wrote an article in the Globe and Mail in which he was very critical of the lack of emphasis on divestment. I guess my feeling at that time was, "Let's wait and see what happens. We have a Conflict of Interest Commissioner who is there to advise members about how they can avoid conflicts of interest. Maybe because of that we don't need so much divestment. Let's wait and see what happens." Now that the Premier's guidelines are in effect and there is more emphasis on divestment I guess I am tempted to say, "Let's evaluate what has happened during this period where we did not emphasize divestment." I would be very curious to get Mr Justice Evans's views on that, but let's also evaluate what happens under the new regime. Does that cause substantial hardships to very many people or does it really help to reduce the incidence of conflict of interest? Let's evaluate the whole thing two or three years from now and see which regime seems to be working the best to promote impartial decision-making.
Mr Poirier: What would happen in the meantime if somebody did really suffer a horrible hardship and a horrible economic cost in the next three years? How do you repair that damage? How do you compensate?
Mr Greene: It seems to me that with regard to the issue of land, there is not an escape clause. There is an escape clause with regard to other types of investment, I think, but with regard to land it seems to me that you have to get rid of it. Is that the case? Therefore, I would hope that there might be some kind of an escape clause with regard to land also built into it, with regard to real bona fide situations where people, under current economic situations, would lose a lot -- it would cost them a lot to be a cabinet minister.
Mr Poirier: Are you afraid that the current guidelines might create that kind of fear? What do you think?
Mr Greene: The possibility is there. I do not think for very many people, but it might be there for one or two.
Mr Poirier: Fair enough.
Mr Carr: I have a question regarding perception. Following along the lines of the last question, it is my feeling that even if we put in tougher guidelines, an incident like what is happening now in British Columbia with the Premier -- the perception out there will be, even though we have the toughest situation, we are all going to get grouped together and all politicians will be thrown together, of all political stripes. I was just wondering if you had given any thoughts to recommendations, how to communicate it to the public. You said we have the toughest laws anywhere now. Have you given any thought as to how we are going to change the perception of the public so that when we put the toughest, and with these guidelines, even tougher -- that people still are not saying we are all alike because of incidents in BC and wherever else? How can we communicate this so that we change the perception, or can we?
Mr Greene: Yes, I think that members of the provincial Parliament could do a lot to change public perceptions.
Mr Carr: I am sorry. Could you --
Mr Greene: I think they could do a great deal to change public perceptions. For example, I think that literature could be prepared explaining the conflict-of-interest regime in Ontario in a very simple way, in one or two pages, in pamphlets that could be given to MPPs when they go to meetings. In their talks with high schools, with their constituents and so on, they could stress the importance of integrity, of the public service ethic in getting involved in politics, rather than getting involved for personal gain. This has been my situation working with elected politicians, that most are there because of the public service ethic, regardless of what party they are in. I think this needs to be stressed. In their public speeches they could explain very simply how the system works, emphasizing the principles of impartiality and equality and, I suppose, also emphasizing that there is no perfect set of rules, and that the rules we have now are there to promote impartiality and equality, and they will evolve as time goes on to reflect these ideals in a more effective way. This does not mean necessarily making them more complex. It might mean making them more simple.
Mr Carr: One last question, just with regard to that: These guidelines obviously are a priority of this government and I wondered if you had some thoughts on the perception out there, with all the other issues that are out there, the economy and numerous problems that are facing this country and this province. Is the conflict of interest a big concern of the public as you see it? Is it something that should be pushed to the forefront? Maybe you would say, if they do not have any respect or public confidence in the integrity of government it will not necessarily follow that we have any integrity in what we do in other areas. Do you see this as a major issue now that needs to be addressed in this province?
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Mr Greene: Yes, but in general terms I think the issue of the integrity of politicians is a major issue. I have certainly found this not only from talking to students, but when I write things about conflict of interest the media are tremendously interested in these types of issues. According to surveys that have been done, the public does not have a great deal of trust in elected politicians. They have far more trust in judges.
Mr Poirier: So they should.
Mr Greene: This is why the Charter of Rights is so popular. It is because it is a transfer of power from these dishonest politicians to these very honest and trustworthy judges, and that perception needs to be changed -- not the perception about judges. I think it can be changed, not only with regard to ensuring that cabinet ministers, for example, do their best to make impartial decisions. I think very often cabinet ministers do not benefit themselves and their friends any more. The rules have evolved so they do not do this any more, but they do benefit their friends in the party a lot. Patronage is something that the public is very much concerned with, so when cabinet ministers make their decisions they have to bend over backwards to ensure they are not making patronage decisions under the law. That is one thing that they could stress in their actions and in their public speeches. Second, with regard to campaign financing, I think it has to be stressed that people are donating to political parties to promote the public interest, not to promote the interests of their particular company. If those two issues are stressed over the next 10 or 20 years, I think the public's perception of politicians might change.
Mr Morrow: God, that is a long time to go, 10 or 20 years. On page 238 you stated the most effective public organization will operate according to an impartially administered set of rules instead of patronage or social class. How would specific conflict-of-interest rules and regulations make the ministers of Ontario more effective?
Mr Greene: How would the conflict-of-interest rules make the ministers more effective?
Mr Morrow: Specifically.
Mr Greene: Specifically. When you read the rules right now, both the legislation and the guidelines, I think it is implied that cabinet ministers, when they are making decisions under the law, should not make patronage decisions, but the rules do not come out and say that. In the guidelines themselves it would very much help if the Premier said, "Look, the rules are here to promote greater impartiality, greater equality and to discourage patronage." If that was right there in the rules, I think it would be perfectly obvious to everyone.
Mr Morrow: I would like to thank you for taking the time to come down and talk to us.
The Acting Chair: Any more questions?
Mr Mills: I would like to make a comment, Mr Chair.
We talk about the perception of the public about honesty. I think that the press, too, has a role to play in pointing out the considerable sacrifice that people make to serve the public. I think it was a little off-colour when a major article appeared in one of the Toronto newspapers where politicians were flying out of this building depicted as fat pigs with bags of money tucked under their arms. This sort of thing does a great disservice to the political system because I know that a number of people who I represent cut out the article and sent it to me and said, "Okay, let's have an explanation of this now." I went to great lengths and subsequently wrote an article pinpointing all of the inaccuracies that were there. I think that sort of thing does a disservice to the political scene in Ontario and I would like to see, for the record, that the press gets positive and does point out that there is another side of the coin, that a lot of people in government from all political parties sacrifice to serve the public; and I think that you have made that point.
Mr Greene: Yes, I could not agree with you more and I think we not only have to look at political ethics but also the ethics of the media. They have very strict codes of ethics, but they do not cover these kinds of situations. A number of years ago I used to work for Alberta social services and we had the same type of problem with regard to our media image. They would criticize us for all the scandals, everything that went wrong, and in a department of that size there are lots of things that go wrong; but the good things that we did were never publicized. So what we started doing was simply preparing press releases with regard to the good things that were happening in the department, and what we discovered is that very often newspapers need more stories to print and they could publish most of the things that we prepared. That is something you could do as well, prepare stories that indicate the kinds of sacrifices that MPPs make. I think they will be picked up by the papers.
Mr Mills: Thank you for coming.
Mr Poirier: I just wanted to echo what Gord Mills has said. You can produce a lot of the stuff, and I am happy to hear that in Alberta the media did pick up the positive. There are a heck of a lot more positive things happening around here than negative things, but ever since Christmas, for some strange reason, I have seen some horrible sorts of stories about the so-called perks at Queen's Park. My God, when you put in about 100, 110 hours a week, you earn on the average about eight bucks an hour and you read about the perks, you say, "What bloody perks?" And yet you can emit, you can produce, you can send, you can give to the media a lot of the good aspects and the sacrifices that members make, from all three parties, to work here. And a lot of them -- most of them -- in the time that they spend here as a member lose a lot of money as opposed to make a lot of money, as opposed to what they write. And you, the new members, will definitely, if you have not already seen that or understood that, with time will really understand that.
I want to put on record and blame the media, because some of the horrible things that I have read, the untruths of some of the claims that they have made in some of these articles since Christmas, it is just appalling. And it is not the first time it is happening and it is definitely not the last time that it is going to happen.
The way Gordon described what he has been living through, people are going to question you if you get a new car, even if it is the smallest, cheapest model. And they will question if you go on a parliamentary trip, as if you won a first-prize trip to Club Med somewhere. I think the media have a lot of blame to take for the very negative image of parliamentary people. With that kind of image, a lot of people will refuse to get into politics, because it creates a frenzy. It is like kicking a hornet's nest with the constituents, with the taxpayers, who perceive that we are really living off the hog here, and that is completely untrue. I wanted to put that on the record and I am glad that Gord brought it up.
Mr Greene: I think one thing that is difficult for MPPs to do is to make a speech to their constituents saying: "Before I became an MPP, I was earning such and such an amount of money. Now I am just earning this and it is a tremendous sacrifice." It is embarrassing to make those kinds of statements. But one thing that you can do is to do a survey of the salaries of members of the provincial Parliament, and you could publicly release a document that says, "Before they were elected, they were making this much. and now it has dropped to this, and the reason they are doing this is because they are committed to public service."
Another function of political parties, all the parties, should be to recruit good people to get involved in politics by explaining the public service ethic: "We want to recruit people that are there to serve the public, not to enrich themselves; and this is how much your income is going to drop when you become involved in the public service." I believe there are a good many people out there that want to serve the public and are willing to undertake these hardships to serve the public.
Mr Poirier: Very much so. Thank you.
The Acting Chair: Professor Greene, thank you for your presentation. We certainly did learn something from it.
Mr Greene: Thanks for inviting me.
The Acting Chair: Is there anything else to come before the Chair?
This committee stands adjourned until 10 o'clock tomorrow morning. Have a good lunch.
The committee adjourned at 1239.