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Conflict of Interest and the Canadian Constitution: An Analysis of Conflict of Interest Rules for Canadian Cabinet Ministers*

Published online by Cambridge University Press:  10 November 2009

Ian Greene
Ian Greene
Affiliation:
York University
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Abstract

The rash of conflict of interest incidents involving cabinet ministers in Canada in 1986, 1987 and early 1988 can in part be explained by the fact that no clear connection exists in most of the conflict of interest rules between the substance of the rules and basic constitutional principles. Unless ministers understand the reasons for the increasingly complex rules, a high degree of compliance with them is unrealistic. The article explores the connection between the rule of law, social equality, the principle of ministerial impartiality and conflict of interest legislation and guidelines. The conflict of interest rules have usually been drafted hastily in reaction to scandals, with little thought given to their constitutional basis. Thirty-five recent conflict of interest incidents are classified and analyzed. Many might have been avoided if the constitutional reasons for the rules had been better understood. Nevertheless, with regard to the overlap between conflicts of interest and political patronage, the Canadian political system has not developed a clear set of expectations for ministerial behaviour in all circumstances.

Résumé

L'auteur soutient que le grand nombre de cas de conflit d'intérêts impliquant des ministres au Canada au cours des années 1986, 1987 et 1988 peut en partie ≖tre expliqué par le fait qu'il n'y a pas à l'intérieur de la plupart des règlements sur les conflits d'intéréts un lien évident entre le fond de ces règlements et certains principes constitutionnels fondamentaux. Si les ministres ne comprennent pas les motifs donnant naissance à de tels règlements, on ne peut s'attendre à ce qu'ils s'y conforment de façon stricte. L'auteur examine les rapports entre la régle de droit, l'équité sociale, le principe de l'impartialité ministérielle, et la législation et la réglementation ayant trait aux conflits d'intérêts. Les règlements sur les conflits d'intérêts sont habituellement élaborés en toute hâte à la suite d'un scandale, sans que l'on s'arrête à leur fondement constitutionnel. Trente-cinq cas récents de conflit d'intérêts sont classifiés et analysés. Plusieurs d'entre eux auraient pu être évités si les motifs constitutionnels des règlements avaient été mieux compris. Toutefois, en ce qui concerne les recoupements entre conflit d'intérêt et patronage politique, notre système politique n'a pas établi de paramètres précis pouvant guider la conduite ministérielle.

Type
Research Article
Information
Canadian Journal of Political Science/Revue canadienne de science politique , Volume 23 , Issue 2 , June 1990 , pp. 233 - 256
Copyright
Copyright © Canadian Political Science Association (l'Association canadienne de science politique) and/et la Société québécoise de science politique 1990

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References

1 Below is a list of cabinet ministers who were accused of a conflict of interest, or whose aides were accused, during the period in question. Cases in which allegations were sustained or admitted are denoted by an asterisk. The federal cabinet ministers were Harvie Andre, André Bissonnette, Michel Coté,* John Crosbie, Otto Jelinek, Roch La Salle, Stewart Mclnnes, Brian Mulroney (two different allegations about his aides and two about himself) and Sinclair Stevens*; as well, Liberal MP Robert Kaplan prompted a police investigation into an allegation against an unnamed ministerial aide. The provincial cabinet ministers involved in conflict of interest stories were Hugh Curtis, Stan Hagen,* Jack Kempf,* Cliff Michael,* Stephen Rogers* (two events) and Tom Waterland* in British Columbia; Don Getty and Larry Shaben in Alberta; Larry Desjardins, Elijah Harper, Maureen Hemphill and Wilson Parasiuk in Manitoba; Elinor Caplan,* René Fontaine* and Ian Scott in Ontario; Gerard Latullippe* in Quebec; James Lee and Ross Young in Prince Edward Island; and Terence Donahoe and Billy Joe Mac Lean* in Nova Scotia. Further documentation of these events may be obtained from the author.

2 Four incidents were investigated and the allegations proved unfounded; in two cases, the minister's explanation indicated that the allegations were clearly unfounded. Three more cases were still under investigation at the end of 1989. In 14 cases, there was no clear resolution as to whether the allegations of conflict of interest were valid.

3 See, for example, Kernaghan, Kenneth, Public Administration in Canada: Selected Readings (5th ed.; Toronto: Methuen, 1985)Google Scholar; Adie, Robert F. and Thomas, Paul G., Canadian Public Administration: Problematical Perspectives (2nd ed.; Toronto: Prentice-Hall, 1987)Google Scholar; and Marshall, Geoffrey, Constitutional Conventions (Oxford: Clarendon, 1986).Google Scholar

4 For example, Thompson, Dennis F., Political Ethics and Public Office (Cambridge: Harvard University Press, 1987)Google Scholar; Bok, Sessela, Lying: Moral Choice in Public and Private Life (New York: Vintage Books, 1979)Google Scholar; and Shugarman, David P., “The Use and Abuse of Politics,” in Macniven, C. Donald (ed.), Moral Expertise (New York: Routledge, 1990), 198–231.Google Scholar

5 Mr. Justice Parker, W. D., Report of the Commission of Inquiry into the Facts of Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens (Ottawa: Supply and Services Canada, 1987), 29.Google Scholar

6 Ibid., 29.

7 Ibid., 35.

8 Canada, Task Force on Conflict of Interest, Starr, Michael and Sharp, Mitchell, co-chairmen, Ethical Conduct in the Public Sector (Ottawa: Supply and Services Canada, 1984)Google Scholar; Aird, John Black, The Aird Report (Toronto: Premier's Office, 1986)Google ScholarPubMed and Parker, Report of the Commission of Inquiry.

9 Locke, John, The Second Treatise of Government (New York: Bobbs-Merrill, 1952), 77, 81.Google Scholar

10 Ibid., 71.

11 In spite of these developments, there remained in the public service some degree of independence from the other branches of government. See Smith, David E., “Patronage in Britain and Canada: An Historical Perspective,” Journal of Canadian Studies 22:2 (1987), 34–54.CrossRefGoogle Scholar

12 Secondat, Charles, Montesquieu, Baron de, The Spirit of the Laws (rev. ed.; New York: Colonial Press, 1900).Google Scholar

13 Whitaker, Reg, “Between Patronage and Bureaucracy: Democratic Politics in Transition,” Journal of Canadian Studies 22:2 (1987), 55–71.CrossRefGoogle Scholar

14 See Simpson, Jeffrey, Spoils of Power: The Politics of Patronage (Toronto: Collins, 1988).Google Scholar

15 See Dicey, A. V., Introduction to the Study of the Law of the Constitution (London: Macmillan, 1902), 183–99Google Scholar; Sir Jennings, Ivor, The Law and the Constitution (5th ed.; London: University of London Press, 1959)Google Scholar, and Hutchinson, Allan C. and Monahan, Patrick (eds.), The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987).Google Scholar

16 Jones, David P., “The Rule Against Bias,” in Jones, David P. and Villars, Anne S. de, Principles of Administrative Law (Toronto: Carswell, 1985), 244–71.Google Scholar

17 Opinion of Dickson J. in Martineau v. Matsqui Institution Disciplinary Bd. (No. 2), [1980] 106 D.L.R. (3d) 385 at 412.

18 National Anti-Poverty Organization v. Canada (Attorney-General), [1989] 1 F.C. 208.

19 In addition, for many judges a political party was once an important reference group. However, unlike cabinet ministers, judges were expected to dissociate themselves from their parties upon appointment in order to minimize potential bias. See Wilson, J. O., A Book for Judges (Ottawa: Supply and Services Canada, 1980).Google Scholar

20 See Report of the Investigation Committee in the Matter of Mr. Justice Thomas Berger (Ottawa: Canadian Judicial Council, 1982).

21 See, for example, Locke, Second Treatise, 76–82.

22 Hon. Maceachen, Allan J., Members of Parliament and Conflict of Interest (Ottawa: Information Canada, 1973), 1–6.Google Scholar

23 See Marshall, Constitutional Conventions, chap. 4; and Kenneth Kernaghan, Public Administration in Canada, chap. 28.

24 See Marshall, Constitutional Conventions, chap. 7, and Edwards, J. Llewellyn, Ministerial Responsibility for National Security (Ottawa: Supply and Services Canada, 1980).Google Scholar

25 Macpherson, C. B., The Real World of Democracy (Toronto: Canadian Broadcasting Corporation, 1971).Google Scholar

26 I have developed these ideas more fully in The Charter of Rights (Toronto: Lorimer, 1989).

27 See “The Charter Project: Attitudes Toward Civil Liberties in Canada” conducted by Peter Russell, Joseph Fletcher, Philip Tetlock and Paul Sniderman in 1987. This project was funded by the SSHRC; data were collected by and are available from the Institute for Social Research at York University.

28 Marchak, Patricia, Ideological Perspectives on Canada (Toronto: McGraw-Hill Ryerson, 1981).Google Scholar

29 Even though studies such as the Charter Project indicate greater support for social equality, some observers believe that a general decrease has occurred in the ethical standards of the public in recent years. See, for example, Camp, Dalton, “The Decline of Public Morality,” Saturday Night 96:1 (1981), 26.Google Scholar From this perspective, the greater media attention devoted to conflicts of interest could be explained by the public's fascination with scandal or media manipulation rather than by public demands for greater social equality.

30 Task Force on Conflict of Interest, Ethical Conduct in the Public Sector, 243.

31 Criminal Code of Canada, sections 108, 110 and 357.

32 The major effect of these Canadian statutes is to prohibit legislators from entering into contracts with the government. See, for example, the Senate and House and Commons Act and House of Commons Act, the New Brunswick Legislative Assembly Act or the Quebec National Assembly Act.

33 These generally prohibit members from voting on matters in which they have a financial interest and enable the legislative houses to impose sanctions on members who have accepted bribes.

34 These acts prohibit persons with certain financial or job-related conflicts of interest from becoming candidates for election. See, for example, the Canada Elections Act.

35 Kernaghan, Kenneth, “Codes of Ethics and Administrative Responsibility,” Canadian Public Administration 17 (1974), 527, 531.CrossRefGoogle Scholar

36 For an empirical study of the divergent views of Canadian MPs about what constitutes political corruption, see Atkinson, Michael M. and Mancuso, Maureen, “Do We Need a Code of Conduct for Politicians?” this Journal 18 (1985), 459.Google Scholar

37 See Kernaghan, Kenneth, “The Ethical Conduct of Canadian Public Servants,” Optimum 4:3 (1973), 1, 6.Google Scholar

38 MacEachen, Members of Parliament and Conflict of Interest.

39 While these major advancements regarding conflict of interest rules were occurring in Canada during the 1970s, parallel developments were occurring in the United States. In 1978, Congress enacted the Ethics in Government Act (2 U.S.C. 701), according to which members of Congress, the cabinet and the judiciary must file comprehensive public disclosure statements which include spouses. See Williams, Sandra, “Conflict of Interest: The Experience of the American Congress,” The Parliamentarian 64 (1983), 138.Google Scholar

40 Gillespie, a former minister, was accused of having business dealings with his former department soon after leaving public life.

41 Task Force on Conflict of Interest, Ethical Conduct in the Public Sector, 23.

42 “Conflict of Interest and Post-Employment Code for Public Office Holders” (Ottawa: Office of the Assistant Deputy Registrar General of Canada, September 1985).

43 See section 36(1) of the 1986 federal conflict of interest code, which states: “A Category A public office holder [which includes a cabinet minister] shall not accord preferential treatment in relation to any official matter to family members or friends or to organizations in which they, family members or friends have an interest.”

44 Federal conflict code, section 7(a).

45 Parker, Report of the Commission of Inquiry, 339–61.

46 Bill C-114, introduced February 24, 1988, section 2(2).

47 Somewhat higher standards, however, would apply to ministers, parliamentary secretaries and opposition leaders than to ordinary MPs and senators.

48 The Globe and Mail, February 12, 1988.

49 A parallel situation occurred in New Brunswick in 1980. The 1978 New Brunswick conflict of interest legislation required ministers to disclose benefits which they received from any sources to a judge, who would rule on whether these benefits placed the minister in a conflict of interest. Premier Richard Hatfield was found to be in a conflict of interest for receiving a series of salary supplements from the Conservative party. Hatfield repaid the salary supplements, but the government amended the legislation so that Hatfield would not have to comply in the future. The judge who had found Hatfield in breach of the legislation resigned in protest, claiming that the government had opened the door to payoffs from party supporters in return for public office favours. See The Globe and Mail, October 11, 1980.

50 Ontario and Newfoundland were the first off the mark in 1972 and 1973. See Kernaghan, Kenneth, “Codes of Ethics and Public Administration,” Public Administration 58 (1980), 207.CrossRefGoogle Scholar

51 These are Newfoundland (Conflict of Interest Act, S.N. 1973, c. 113); Brunswick, New (Conflict of Interest Act, S.N.B. 1978, c. C-16.1)Google Scholar; Manitoba, (Legislative Assembly and Executive Council Conflict of Interest Act, S.M. 1983, c. 27)Google Scholar; Edward, Prince Island (Conflict of Interest Act, 1986)Google Scholar; Scotia, Nova (Conflict of Interest Act, S.N.S. 1987, Bill 107)Google Scholar; and Ontario, (Member's Conflict of Interest Act, 1987).Google Scholar In all six provinces, the legislation applies to members of the legislature, ministers and their spouses. Public disclosure of assets and liabilities is required in three provinces and confidential disclosure in the others. In three provinces favouritism to friends and associates is prohibited. Four provinces require ministers to withdraw from decision-making if they may be in a conflict of interest. Four provinces have given investigative powers to the judiciary while one (Newfoundland) relies on the provincial auditor general and another (Ontario) has created an ethics commission. In three provinces, the legislation contains a definition of conflict of interest and in two others, a partial definition.

52 The British Columbia Financial Disclosures Act (S.B.C. 1974, 73–79)Google Scholar includes comprehensive disclosure requirements for MLAs, municipal councillors and officials, and provincial public servants. The Saskatchewan, Members of the Legislative Assembly Conflict of Interests Act (S.S. 1979Google Scholar, c. M-l 1.2) and the Alberta, Legislative Assembly Act (S.A. 1983Google Scholar, c. L-10.1) go beyond the usual provincial acts by requiring disclosure of assets and liabilities. Quebec is the only province which does not have conflict of interest legislation beyond a standard legislative assembly act, the main effect of which is to prevent members from entering into contracts with government agencies. However, the Quebec premier's conflict of interest guidelines are among the strictest in the country.

53 Interview with a member of the 1972 provincial cabinet, who wishes to remain anonymous.

54 Aird, The Aird Report.

55 The legislation for New Brunswick and Manitoba and the draft federal legislation create somewhat higher standards for ministers.

56 Aird, The Aird Report, 15–35.

57 The Fontaine affair in Ontario illustrates this point. Throughout the hearings of the legislative committee which considered his case, Fontaine protested that his “motives were honourable.” At the end of the hearings, however, Fontaine admitted that because of his breach of the conflict rules, his “actions could have been interpreted differently by some” (Ontario, Standing Committee on the Legislative Assembly, Report on Allegation of Conflict of Interest Concerning René Fontaine, MPP [Toronto, September 1986, 1]).Google Scholar It was not until this point apparently that Fontaine realized the importance of the appearance of impartiality.

58 Another explanatory approach would consider that eight prominent events involving patronage pertained to one government—the Mulroney Conservatives—and that seven of these incidents involved Quebec cabinet ministers or their aides. It has been suggested that this relationship between a particular province and conflict of interest scandals may indicate that Quebec politicians tend to be less ethical than those from other provinces. See, for example, The Toronto Star, February 6, 1988. This explanation, however, is discounted by the fact that the Quebec provincial cabinet experienced only one conflict of interest scandal during the same time period.