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The New Conflict of Interest Act in New Brunswick
Stuart G. Stratton

Stuart G. Stratton was appointed Conflict of Interest Commissioner of New Brunswick in February 2000.

In 1978, the New Brunswick Government enacted one of the first Conflict of Interest Acts in Canada. The purpose of that Act was to assist legislative members, and others, to avoid an actual or apparent conflict of interest. In addition to Members of the Legislature and Cabinet Ministers, the Act applied as well to Deputy Ministers, executive staff members and heads of Crown Corporations. That Act required all of these people to make full disclosure of assets and liabilities by filing a sworn declaration with a designated Judge of the Court of Queen’s Bench. In March 1999, following a review by the Legislative Administration Committee, a new Members’ Conflict of Interest Act was adopted. This article is a slightly edited version of the first Bulletin of the new Commissioner appointed under that Act. The article was sent to all members of the New Brunswick Legislative Assembly in May 2000 and is available on the web site of the New Brunswick Legislative Assembly.

In response to what has been described as an unprecedented level of cynicism and lack of trust in politicians, revisions have been made to most of the Conflict of Interest Acts in Canada in an effort to put into place a regime that will better avoid conflict of interest situations. Several of the revised acts, like the one in New Brunswick, now have application to Members only and provide for the appointment of an independent Commissioner from outside government or the courts (in some instances referred to as Ethics Commissioners) to administer the Act.

The events leading up to the enactment of the new Members’ Conflict of Interest Act are of some interest. In 1997, the Government of New Brunswick retained the Honourable William L.M. Creaghan, a retired Judge of the Court of Queen’s Bench, to review comparable conflict legislation in other provinces and to consult with those affected by the provisions of our legislation. In June of 1997, Justice Creaghan produced a report entitled “Review and Recommendations of William L.M. Creaghan on the New Brunswick Conflict of Interest Act.”

Following receipt of Justice Creaghan’s Report, the Legislative Assembly referred the report to the Legislative Administration Committee. After a year of meetings and discussions, that Committee produced a report of its own dated December 18, 1998, which recommended that a new Conflict of Interest Act be enacted. Following receipt of this latter report, the Legislative Assembly of New Brunswick enacted the Members’ Conflict of Interest Act on March 12, 1999. The Act has since been  proclaimed to be in effect as of May 1, 2000.

When introducing the new Members’ Conflict of Interest Act in the New Brunswick Legislature on March 9, 1999 the then Minister of Justice said:

“The proposed new Members’ Conflict of Interest Act provides a set of guidelines to govern the conduct of Members of the Legislative Assembly in conflict of interest situations. Processes related to compliance with the standards include the appointment of a Conflict of Interest Commissioner, the provision of advice by the Commissioner, private disclosure statements, and enforcement by the Legislative Assembly. The Act also prohibits former ministers from engaging in certain activities related to contracts and benefits during the 12-month period after leaving office; this is enforceable through the courts.

The proposal implements the recommendations of the Legislative Administration Committee of the Legislative Assembly resulting from the Committee’s consideration of Justice William Creaghan’s 1997 review of the Act.”

Since my appointment to the Office of Commissioner, I have read several statements concerning the purpose behind the enactment of Conflict of Interest Acts and Conflict Codes. Let me quote what some authors have said about the purpose of the new legislation.

“The purpose of conflict of interest statutes is to set out acceptable standards of conduct for elected officials in order to ensure that the private interests of these individuals do not come into conflict with the performance of their public duties.”

“The basic principle of \the New Brunswick] Act is that Members of the Legislative Assembly must not allow their private financial interests to influence the conduct of public business.”

“The primary purpose of integrity legislation is not to promote high ethical standards among Members, all of whom we expect, having chosen to aspire to public office, possess the necessary moral qualities which entitles them to be referred to as the “Honourable Member” in the Legislature. Rather, it is a standard against which an ever-increasingly cynical and suspicious press and public may measure their behaviour in office. It may not appease the more rabid critics, but it will serve as a source of satisfaction to the Member whose conduct is under attack to know that it meets the standard by which his peers are also judged.”

There are Conflict of Interest Statutes in nine of the provinces of Canada, the Yukon, and the Northwest Territories. A Conflict of Interest Act for the new territory of Nunavut is under study. In addition, many of the provisions contained in the New Brunswick legislation are patterned upon the Revised Acts in Ontario, Alberta and British Columbia.

The Office of Conflict of Interest Commissioner

The Office of the Conflict of Interest Commissioner opened on May 1, 2000. The Commission is located in the former Office of  the Lieutenant-Governor in Edgecombe House at 736 King Street.  The office has been established as a part-time position with part-time clerical assistance provided by the staff in the Legislative Assembly Office.

One of the most important functions assigned to the Commissioner under the Act relates to the  provision of advice. Section 29 of the Act authorizes the Commissioner to give advice and recommendations of general application to Members or former Members respecting their obligations under the Act.

Section 30 of the Act goes even further. That section permits a Member or former Member to seek the written advice of the Commissioner on any matter respecting the Member’s obligations under the Act. If a Member provides all relevant details to the Commissioner and follows the advice of the Commissioner, that Member is protected from any actions under the Act relating to the matter in question.

Please note too that, pursuant to subsection 30(3), the advice and recommendations of the Commissioner are confidential until released by the Member or former Member or with his or her consent.

Selected Sections of the Act

To comply with the requirements of the Act, Members should learn all of its provisions. I would, however, highlight the following provisions:

Section 4 sets out the general intent of the Act. That intent is to prevent conflicts from arising between the execution of a Member’s official duties and responsibilities and his or her private interests.

Section 8 pertains to gifts. Subsection 8(1) states that a Member shall not accept a fee, gift or personal benefit that is “connected directly or indirectly with the performance of the Member’s duties of office.” But note that this restriction does not apply in respect of gifts or personal benefits that are received “as an incident of the protocol or social obligation that normally accompany the responsibilities of office.” When, however,  these latter types of gifts or benefits exceed $250.00 in value, or the total received from any one source exceed this value, the Member must file a “Gift Disclosure Statement” with me without delay indicating “the nature of the gift or personal benefit, its’ source and the circumstances under which it was given and accepted.”

Section 13 sets out what must be done when a Member has reasonable grounds to believe that he or she has a conflict of interest in a matter that is before the Assembly or the Executive Council or a Committee of either of them. The Member must disclose the general nature of the conflict of interest and withdraw from the meeting without voting or participating in consideration of the matter.

Section 18 requires each Member of the Legislature to file an annual “Private Disclosure Statement.” The disclosure statement must contain a statement of the nature of the assets, liabilities and financial and business interests of the Member, the Member’s spouse and minor children and of private corporations controlled by any of them. A Member must also disclose “any salary, financial assistance or other benefit the Member has received from a Registered Political Party or Registered District Association.”

Under subsection 18(5) of the Act, certain items need not be disclosed in the Private Disclosure Statement. These items include the Member’s primary residence, primary recreational property, automobiles owned or controlled, items of domestic, household or personal use or ownership, including cash, non-convertible bonds, trust and bank certificates, registered retirement savings plans which are not self-administered and any property placed in a blind trust.

Subsection 18(6) mandates that after a Private Disclosure Statement has been filed with me, I must consult with the Member and the Member’s spouse, if available, to ensure that adequate disclosure has been made and to provide advice on the Member’s obligations under the Act.

Subsection 18(7) should also be noted. If there is a change in the assets, liabilities or financial or business interests of a Member of his or her spouse and minor children, or any private corporation controlled by any of them which would reasonably be expected to have a significant effect on the information previously disclosed, the Member must file with me a “Statement of Material Change” within thirty (30) days of any such change.

Another section of the Act that I would like to bring to your attention is section 20. That section requires me to prepare a “Public Disclosure Statement” which shall, subject to some exceptions, “state the source and nature, but not the value of the assets, liabilities, and financial and business interests” of each Member as well as “any salary, financial assistance or other benefit the Member has received from a registered political party or a registered district association during the preceding twelve months” and any gift or benefit that has been disclosed.

But as I noted, there are exceptions to what must be disclosed in the Commissioner’s “Public Disclosure Statement.” These include:

·         any asset or liability worth less than $2500.00;

·         any interest in a pension plan, employee benefit plan, annuity or life insurance policy;

·         any interest in an open-ended mutual fund that has broadly based investments not limited to one industry or one sector of the economy;

·         any other asset, liability or financial or business interest that the Commissioner approves for exclusion.

The Act requires each Member to file a Private Disclosure Statement with the Commissioner within sixty days after becoming a member of the Assembly, and in each subsequent year at the time specified by the Commissioner. Should a Member fail to file a Private Disclosure Statement within the period of time prescribed by the Act, I must, subsequent to one written reminder, inform the Speaker of the Member’s default. The Speaker must then table my report before the Assembly.

Subsection 41(1) provides that the failure to file a Private Disclosure Statement, a Gift Disclosure Statement or a Statement of Material Change within the time provided by the Act can lead to serious consequences including a reprimand, a monetary penalty, suspension from the Assembly or expulsion.

Other provisions of the Act provide that Members may not:

(i) use insider information to their benefit;

(ii) use the influence of their office to obtain a decision to further their private interests;

(iii) be a party to a contract with the Crown under which the Member receives a benefit;

(iv) be employed by the Crown in right of Canada or in right of New Brunswick.

In addition, Members of the Executive Council must not:

(i) engage in any employment or in the practice of a profession;

(ii) carry on a business;

(iii) hold or trade in securities, stocks, futures or commodities;

(iv) hold an office or directorship, unless holding the office or directorship is one of the Member’s duties as a member of the Executive Council.

Investigation and Inquiries

Under section 36 of the Act “Any Person” may request an investigation into allegations of a breach of the Act. Such requests must be in the form of an affidavit setting out the grounds and the nature of the alleged breach. In addition, the Assembly may, by resolution, request that I investigate an alleged breach of the Act by a Member.

On receipt of a request for an investigation, the Commissioner must review the matter and decide whether or not there is jurisdiction under the Act. If there is jurisdiction, the Commissioner must then decide whether to conduct an investigation with or without conducting a formal inquiry. The Member against whom an allegation is made must be given reasonable notice of any investigation and be given an opportunity to respond to the allegation.

If the Commissioner is of the opinion that the request is frivolous, vexatious or not made in good faith, or that there are no grounds or insufficient grounds for an investigation, the Commissioner may refuse to conduct an investigation, or may cease the investigation.

Following an investigation, the Commissioner’s Report is filed with the Speaker who must lay the Report before the Assembly. The Assembly may either accept or reject the findings of the Commissioner or substitute its own findings and may vary the recommended sanction or impose no sanction. The sanctions that may be recommended range from a reprimand to expulsion from the House. The Commissioner may also recommend no sanction if the breach that occurred was trivial or committed through inadvertence or an error in judgment made in good faith.

Finally, please let me emphasize the obvious. This is a new Act that I have been referring to. In addition, the new forms we have had to prepare to carry forward the provisions of the Act have not yet been tested by experience. Anything new can be a matter of concern to those who must comply with the Act and to those of us who must administer it. My objective will be to assist Members in any way I can to ensure that they avoid any conflict of interest as they go about their daily duties and responsibilities as Members of the Legislative Assembly of New Brunswick.

 


The Commonwealth and the New Generation


Canadian Parliamentary Review, Volume 24 no 2, 2001

by Victoria Kellett

A graduate of the University of Ottawa, Victoria Kellett is presently working for the Occupational Health and Safety Agency of Health Canada. 


Of the 1.7 billion individuals living in Commonwealth countries more than half are under 21 years of age.  The future of the Commonwealth is very much in the hands of this New Generation. In recognition of this fact the Federal Branch of the Commonwealth Parliamentary Association marked its annual Commonwealth Day dinner by inviting Canada’s representative to the Commonwealth Youth Programme as guest speaker.  This article, based on her address to about 100 parliamentarians and diplomats, suggests that the Commonwealth is still an ideal vehicle for youth from around the world to broaden their knowledge and open their minds to new cultural experiences.

My initiation into the Commonwealth came about through a request to high schools by the National Student Commonwealth Forum (NSCF) to submit applicants to attend their yearly Forum. At the time, my experience of the Commonwealth was limited and my knowledge extended only as far as I knew that athletes competed in the Commonwealth Games. One of my teachers mentioned that students from across Canada were meeting in Ottawa under the auspices of the Forum, and when he suggested that some of us might wish to participate, quite a number of students sought the limited spots. Many of our teachers were impressed by our enthusiasm in competing to attend this Forum, however I think they would have been dismayed to realize that we viewed it as mainly a way to miss school, even if only for a short while. Eight years later I am still associated with the Commonwealth, and I look back at that opportunity as a defining moment in my life.

The aim of the National Student Commonwealth Forum is the education of young people with respect to the Commonwealth. The Forum, which has been held annually since 1973, allows young people from every region in Canada to learn about international issues, meet with Senators, MPs, High Commissioners, personnel from Foreign Affairs, and representatives from the media. Each delegation represents a country in the Commonwealth and is prepared throughout the week with the necessary tools to adequately represent the interests of their respective countries. The week culminates with a mock Commonwealth Heads of Government meeting in which the students endeavour to reach consensus on various issues. The Forum is run by students, for students with the Royal Commonwealth Society providing some guidance. I began my association with the Forum first as a delegate and then as a member of the planning team. I eventually co-chaired the 25th Forum.

When I first joined the Forum I worked in many different capacities. Our committee took innovation in the program to a new height – or depth – when for the first time we entered a float in the Santa Claus Parade a few years ago. With the innocence of novices we did not realize all this entailed and it required frantic all night decorating efforts and much coercion to persuade a local farmer to lend us his wagon. I think the parade marshals would have preferred that we had not tried so hard because as we drove up to the assembly point the whole load fell off. However, we took our places nonetheless, wedged somewhere between the Carpentry Association of Ottawa and the Volunteer Medics. I am not sure if that was fluke or by design. However, it must have gone over well in the end because we were invited back the next year. We quit while we were ahead. Even though our inexperience must have been obvious, I could not help but be struck by the encouragement we were given to try something new. To take an idea and see it through and then to debrief after and work out for ourselves what improvements could have been made was an important learning process.

One of the most important and for me personally rewarding aspects of the week was the incredible support given the Forum by parliamentarians. One of the most profound impressions left upon everyone was the opportunity for the students not only to meet with their MPs and High Commissioners, but also the opportunity to speak in the Senate. People who accuse contemporary youth of being politically indifferent should have been a fly on the wall of the Senate when these students debated the issues of the day with intensity and growing confidence.


In a federal system, it is particularly apt that young people from the farthest reaches of Canada come to the Nation’s capital to discuss issues that ultimately affect their lives and those of their communities. Many students returned to their homes with a new zeal to bring the principles of the Commonwealth into their educational background.


Involvement with the Commonwealth sparked an urge to travel and one of the first places I travelled to was the Commonwealth Secretariat in London. The ability for me as a young person to access individuals who are responsible for implementing change was profound and it was a meeting that I will not soon forget. This visit reinforced my desire to become more involved in the Commonwealth and soon after I began to travel quite extensively. Looking back I realize that the training provided by being a part of the Forum and then my extensive travelling prepared me well for my present role as Canadian representative to the Commonwealth Youth Program (CYP).

The purpose of the Commonwealth Youth Program is to promote the Commonwealth values of international co-operation, social justice, democracy and human rights among young people in the Commonwealth. It achieves this through the participation of youth at regional meetings, having youth representatives at the Ministerial Table, and at the Youth Minister’s Meeting. The recommendations we put forth directly affect government policy.

Every three years existing strategies are examined and new ones developed. For the past three years, the CYP strategies have focused on Youth Empowerment, Human Resources Development and National Youth Policies. For many countries, these issues are very topical and they are struggling to ensure that youth are being given the opportunity for a sustainable future. Canada has been in the fortunate position to have already adopted many measures that positively affect youth, and is not experiencing the same growing pains as some fellow Commonwealth members. However, this poses its own challenge. Given that Canada is a major contributor to the program, I must draw upon our experiences while emphasizing areas where we also need further development.

The Commonwealth remained part of my education in the broadest sense. It invoked in me a desire to explore the way in which countries interact on the international scene and the hope and examples the Commonwealth provides on civilized resolution of disputes. Perhaps that prompted me to pursue a post graduate diploma in International Peace and Conflict Studies from the University of Waterloo. We have certainly seen our fair share of conflict within the Commonwealth, its disturbing effect on youth and indeed in some cases, their involuntary participation as soldiers in warfare. Indeed I became aware of the combination of youth and conflict on two occasions. The first occurred during a trip to Italy where I witnessed NATO troops preparing for humanitarian action in Kosovo. One night, while watching CNN, I caught an interview where the youngest members of the U.S. military were being asked what it was like to be on their first mission and to explain what their role was. A youth no more than 18, responded that he was there to find the enemy and kill them. While the situation of Kosovo necessitated military action, I could not but reflect on the value of an organization devoted to dialogue and political sporting and cultural exchange. The whole purpose of the Commonwealth is to resolve situations before they get that far. With this year’s theme, and with the strategies put forward by the CYP, I can only hope that the recommendations we put forward will have some resonance.

The second occasion where such conflict was brought home to me was on a recent trip to the Solomon Islands for a Commonwealth Youth Minister’s Meeting (CYMM). While studying at Waterloo, I understood the material provided and I recognized that conflict does happen. What I was not prepared for was to have my academic year complimented so nicely by first hand experience of international conflict. The venue for the CYMM, a triennial meeting, was to be Honiara, Solomon Islands. Give the distance, I chose Fiji as a stopover and since my academic year was over I was able to arrange a prolonged stay upon the completion of my meetings in Honiara. Less that 24 hours after arriving in Fiji, George Speight swept into Parliament taking Prime Minister Chowdhury and his Cabinet hostage. Within hours, the military took action, imposing road blocks between Nadi and Suva (the two main cities on the island) and a curfew. Communication was cut off and contact with the outside world was impossible. Not only was I not able to apprise my family of the situation, I now had no way of getting a flight to the Solomon Islands as without a pass I could not leave my hotel.

Reading newspaper articles when I returned to Canada I realized that they did not have a full account of what had really been going on. By their accounts it was a fairly benign coup. But I saw something different. I saw individual ethnic groups being targeted, homes burned, livelihoods being destroyed, people too terrified to leave their homes, children being kept back from school, looting, burning churches, and always the presence of armed individuals. Without an Embassy or even a consulate the information that would trickle back to most Western countries was diluted. I did manage to obtain a pass to get around curfew and was eventually able to negotiate a flight to the Solomon Islands, but other delegations were prevented from leaving their hotels and did not arrive in Honiara until the meeting was almost concluded.

We had been warned prior to leaving Canada that the Solomon Islands had experienced ethnic tension for decades and we were well aware of the travel advisories. Having left Fiji and the coup behind me, I now had to prepare myself for perhaps more of the same. While the hospitality and warmth extended to us was remarkable, the ethnic tension and the trickling effect of the coup in Fiji was obvious. We were unable to venture beyond certain points and while we were there several beheadings occurred less than a minute from our accommodations. We also knew that while we had extensive security, should the ethnic tension escalate, our security personnel would disappear. They could not afford to take sides. Indeed, we had no sooner become accustomed to their presence everywhere, when our security disappeared altogether one day while we were sitting in Parliament. The unease in the room was palpable as we remembered Fiji. The Government of the Solomon Islands however, worked very hard with both groups engaged in the conflict to ensure that nothing happened during that week. With 54 Ministers present it would have caused a significant international incident. The Solomon Islands experienced their own coup less than a week later.

We accomplished much during our week in Honiara. I think we all realized the importance of what we were doing as we watched armed youth struggling amongst themselves for the few resources available. As we worked toward recommending micro-credit initiatives, fostering links between private and public sectors, ways to empower youth, encouraging the use of sport for both mental and physical well-being, educating youth about HIV/AIDS and the incorporation of a stronger youth voice in government, we could not help but be aware that these steps were key to decreasing conflict. There is nothing normal about teenagers being armed.

Having returned to Canada safely, I continued with my role. The CYP is not only about travelling and representing a country on an international scale. It is also about communicating with Canadian youth. It is a constant dialogue, one that is challenging given Canada’s regional differences. It is about disseminating information and in turn learning what drives youth, what they feel is important to their future and what role they would like to play in it. My term will end far too quickly but I know that I have come too far to leave the Commonwealth behind. I am encouraged by the talent that is out there, and by the commitment of other youth such as Alicia Kennedy and David Lynch (this year’s co-chairs of the NSCF), to take on the challenge of educating other youth. I commend their efforts.

The point I would like to leave with you tonight is that the support of parliamentarians and others emboldened me to get involved. When young people are encouraged to explore new frontiers and approach challenges in different ways, you are giving us something tremendously valuable. You are showing your faith in our abilities and your pride in our accomplishments. As someone who has benefited enormously from this support I am strongly committed to doing my part to see that it comes full circle.


Canadian Parliamentary Review Cover
Vol 24 no 2
2001






Last Updated: 2018-07-31