CONFLICT-OF-INTEREST GUIDELINES
CONTENTS
Tuesday 30 April 1991
Conflict-of-interest guidelines
Hon Gregory Evans
Adjournment
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair: White, Drummond (Durham Centre NDP)
Vice-Chair: Morrow, Mark (Wentworth East NDP)
Carr, Gary (Oakville South PC)
Chiarelli, Robert (Ottawa West L)
Fletcher, Derek (Guelph NDP)
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:
Haslam, Karen (Perth NDP) for Mr F. Wilson
Scott, Ian G. (St George-St. David L) for Mr Poirier
Also taking part: O'Neil, Hugh P. (Quinte L)
Clerk: Freedman, Lisa
Staff: Swift, Susan, Research Officer, Legislative Research Service
The committee met at 1536 in room 228.
CONFLICT-OF-INTEREST GUIDELINES
Resuming consideration of the Premier's conflict-of-interest guidelines.
HON GREGORY EVANS
The Chair: I would like to call the committee meeting to order. We have before us the Honourable Gregory Evans, commissioner, conflict of interest, and this is precisely what the hearings are in regard to. I understand we have an agreement for half an hour for each party, and whatever time remains will be divided equally until 6 o'clock.
Hon Mr Evans: I have no opening statement. I came here because I was requested and I am available.
Mr Sorbara: I am going to begin with just a brief point on the scheduling of the balance of our hearings on the Premier's conflict-of-interest guidelines. We now have a schedule that we have, I should say, reluctantly accepted. There is one major omission from the schedule. The government party had undertaken to arrange for the Premier to come and testify before this committee once again. Obviously, they did not insist that he would be here, but we said we would make our schedule as flexible as possible so we could question the Premier about the additions to his guidelines. I understand now that the Premier has refused to appear before the committee and I just want to express my regret in that regard.
Mrs Mathyssen: I would like to respond that we, as a committee, undertook to invite the Premier, but his schedule was such that he could not be here and, yes indeed, this schedule was agreed to. When it came to me for my signature, I might point out, the signatures of the other members, the members on the other side, were already affixed to the agreement, so I think Mr Sorbara's suggesting that somehow he was reluctant in this is a misrepresentation of the reality.
The Chair: Order.
Mr Sorbara: We know that it is unparliamentary to use the word "misrepresent." I did not misrepresent anything.
Mrs Mathyssen: I am sure you were mistaken.
Mr Sorbara: I was told by the clerk that notwithstanding that the Premier had been offered an opportunity to testify on whatever day he chose, at whatever hour he chose, it still was not within his schedule to appear before this committee. I just ask out loud what the Premier has to hide. They are his guidelines that we are discussing. The fact that he refuses to come before this committee and testify as to the addendum to his guidelines should simply be noted for the record, and I regret that.
Now, having said that, I want to welcome Commissioner Evans to our committee and say to him that we are very glad, sir, that you have agreed to come back before the committee to give further testimony on the conflict-of-interest guidelines that are the subject matter of our hearings.
Commissioner Evans, I would just like to review very quickly the testimony you gave when you were here last. I understand that at that point you presented a number of amendments that you would like to see to the current Members' Conflict of Interest Act.
Hon Mr Evans: Correct.
Mr Sorbara: I think we are going to take that up; I think my colleagues in the Conservative Party are going to take that up. But in consideration of the Premier's guidelines, I think you said -- I am quoting here -- "I think that it is a pretty draconian measure." That is the measure to require ministers to divest themselves of their assets under the terms of the guidelines as they appear now. Is that right?
Hon Mr Evans: That is correct.
Mr Sorbara: You pointed out that the new system will penalize parliamentary assistants who may only stay in office for three or four months, and they would be required to divest.
Hon Mr Evans: The parliamentary assistants will be under the same terms and conditions as the members of the executive.
Mr Sorbara: You said the blind trust generally in these conflict matters had fallen into disrepute because everyone thought the blind trust had too many eyes. Is that correct? I think we all agreed with that, as a matter of fact.
Now, in response to the opportunity of the Premier to forgo the requirement that a minister divest -- that is, relieve the minister of his responsibility to divest under an undue hardship provision -- I think you said that might vary according to the financial position of a particular minister; that is what undue hardship is. I think you said that becomes very difficult. Could you just expand on that and the problems with applying undue hardship in each case?
Hon Mr Evans: We are speaking now of course of the Premier's guidelines only, not of the act, because I have nothing to do with exempting anyone from the guidelines.
Mr Sorbara: No, but I am talking about the difficulty that the Premier might encounter.
Hon Mr Evans: I think I would find it difficult. I do not know how the Premier would find it, but certainly, if one has a considerable amount of assets that have been transferred, he may not suffer the same hardship as one who has probably very little and is forced to put them into a trust. What standard are you going to apply?
Mr Sorbara: As it turned out, my information is that since the ministers submitted, in accordance with the Members' Conflict of Interest Act, their statement of assets, there has been no significant divestiture or reporting to you of any minister divesting of assets. Is that correct?
Hon Mr Evans: That is quite correct. We do not have anything to indicate there has been a substantial divestment. There have been a few who have indicated a transfer of certain assets into a trust, into a registered retirement savings plan, for example.
Mr Sorbara: When it was put to the Premier in question period, about two and a half weeks ago, that certain ministers and certain parliamentary assistants had not divested assets in accordance with the conflict-of-interest guidelines that he presented to Parliament on 12 December, the Premier responded that his ministers and parliamentary assistants had complied with what can only be referred to as an amendment or an addendum to the guidelines. Have you seen or do you know of any addendum to the guidelines that the Premier submitted on 12 December?
Hon Mr Evans: The one from 12 February?
Mr Sorbara: Yes, 12 February. You now have a copy of that memo from the Premier to cabinet ministers, parliamentary assistants and caucus members. The subject matter is "Conflict of Interest." Do you now have a copy of that memo?
Hon Mr Evans: Yes.
Mr Sorbara: Can you tell the committee when you first became aware that the Premier had amended his conflict-of-interest guidelines by way of a memo dated 12 February 1991?
Hon Mr Evans: On 17 April. I received a copy from the Liberal caucus, and on the following morning I received one from Premier Rae's office.
Mr Sorbara: So your first information about an amendment to the guidelines came from the Liberal caucus?
Hon Mr Evans: Correct.
Mr Sorbara: And the day after that, the Premier's office sent you a copy of the memo?
Hon Mr Evans: One came late in the afternoon; the other came the next morning.
Mr Sorbara: Have you had a chance to review this amendment to the guidelines?
Hon Mr Evans: I have read it.
Mr Sorbara: You have read the Premier's conflict-of-interest guidelines dated, I think, 12 December.
Hon Mr Evans: Yes, I have read that as well.
Mr Sorbara: Can you comment on how this addendum, in your view, modifies the requirements that are set out in the Premier's conflict-of-interest guidelines?
Hon Mr Evans: In the Premier's conflict-of-interest guidelines?
Mr Sorbara: That is to say, how does this new document from Premier Rae setting out circumstances under which ministers and parliamentary assistants do not have to sell rental property, do not have to sell RRSPs and, in some cases, do not have to sell other financial interests amends the document that was the subject of this committee originally, that is, the Premier's guidelines? Can you tell us that?
Hon Mr Evans: I do not think there were very many changes in it. I think he has explained that, with respect to rental properties, he does not consider rental of rooms or apartments in owner-occupied property as a conflict of interest, although ownership of rental property does pose the potential for conflict, and I assume he is ruling out any commercial rentals in that.
Mr Sorbara: Let's take the case, for example, of the Minister of Transportation, Ed Philip. Apparently, Mr Philip owned and continues to own a condominium at 33 Harbour Square in the city of Toronto. Under the Premier's original guidelines, would he have been required to sell that condominium or divest himself of an interest in that condominium?
Hon Mr Evans: Under the original one, I think he would have.
Mr Sorbara: Under the amendments, would the Minister of Transportation be required to sell his interest in that condominium?
Hon Mr Evans: Quite possibly.
Mr Sorbara: The Minister of Community and Social Services owns a one-eighth interest in a property in Oakville known as 1008 Falgarwood Drive, not her personal residence, and therefore a business interest. Under the initial guidelines, would she have had to sell that interest?
Hon Mr Evans: Yes.
Mr Sorbara: Under the amendment, would she be absolved from having to sell that interest?
Hon Mr Evans: I would think she would still be required.
Mr Sorbara: Still be required to sell the interest?
I am looking now at an interest of the Minister of Culture and Communications, Elaine Ziemba, who apparently still has an interest in 2264 Bloor Street West.
Mrs Haslam: Ms Ziemba is not the Minister of Culture and Communications.
The Chair: Mr Sorbara has the floor. I am sure the correction will be noted.
Mrs Haslam: I was just trying to correct.
Mr Sorbara: I am sorry. I stand corrected. The Minister of Citizenship owns an interest in 2264 Bloor Street West in Toronto. Under the guidelines, I take it that she would have had to sell that interest. She has not sold that interest and she relies on the Premier's addendum as a basis for not having to sell that interest. What is your view of that?
Hon Mr Evans: Is a case of hardship involved?
Mr Sorbara: I do not know. We have not had an explanation from the Premier.
Hon Mr Evans: I have no idea.
Mr Sorbara: Anthony Perruzza, a parliamentary assistant in the government, owns some farm land in the county of Simcoe. Under the Premier's guidelines, would he have had to divest himself of that interest, assuming no hardship?
Hon Mr Evans: Sorry; I did not get your question.
Mr Sorbara: Anthony Perruzza, a parliamentary assistant in the government, owns farm land not used as a principal residence in the county of Simcoe. Under the Premier's guidelines, unamended, would Mr Perruzza be required to sell his interest in that farm land?
Hon Mr Evans: I would think so.
Mr Sorbara: The fact that Mr Perruzza has not sold his interest in that farm land could be explained by virtue of the amendments to the guidelines dated 12 February.
Hon Mr Evans: Yes.
Mr Sorbara: Another parliamentary assistant, Wayne Lessard, owns a rental property at 1621-1623 Church Street in Windsor. That property is not used as a principal residence or as a recreational property. We understand that Mr Lessard owns it as a rental property, has not divested of it, but were it not for the amendment would probably have to have divested of his interest in this property under the previous guidelines, absent hardship.
Hon Mr Evans: Correct.
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Mr Sorbara: And it would be safe to say that the fact that he has not divested of that property is based on the amendment to the guidelines dated 12 February.
Hon Mr Evans: Which allows for "single-family dwelling, condominium or other such dwelling" in addition to private residence.
Mr Sorbara: When the Premier's office sent you a copy of his memo dated 12 February, did he offer you any explanation as to why he had not submitted to you or to Parliament or the public a copy of this confidential memo?
Hon Mr Evans: No, he did not and I would have been surprised had he.
Mr Sorbara: Now why is that?
Hon Mr Evans: I do not expect the Premier to consult with me when he wants to make an amendment to guidelines he is proposing.
Mr Sorbara: But the guidelines were made public, were they not? They were tabled in Parliament.
Hon Mr Evans: That I am not sure of. I do not listen every day to it.
Mr Sorbara: I can assure you, Commissioner Evans, that they were tabled in the Legislature. I guess I am just asking your view as to whether you think this memo amended the guidelines sufficiently so that it ought to have been public knowledge, or at least made available to this committee in its consideration of the original guidelines.
Hon Mr Evans: I assume it was made available to the committee.
Mr Sorbara: Well, it was not made available to the committee. The committee became aware of this amendment in the same way that you did, through the Liberal research office.
Hon Mr Evans: I am not familiar with the process.
Mr Sorbara: Okay. I think my friend from St George-St David has some questions.
The Chair: Mr Chiarelli has to be recognized first.
Mr Chiarelli: I just have a couple of very brief questions. This particular cabinet was sworn in, I believe, on 1 October. If a new member of the executive council had properties that should be subject to divestiture or are likely to be the subject of divestiture and a matter comes before cabinet such as Bill 4 dealing with the issues between landlords and tenants, if one of those assets were a rental property, do you think that particular member of cabinet ought to declare interest or at least refrain from participating in cabinet discussions?
Hon Mr Evans: You are talking about under the Members' Conflict of Interest Act?
Mr Chiarelli: Yes.
Hon Mr Evans: No, I do not think so, because practically everybody is either a landlord or a tenant, all members, so I think there is an exemption under section 1, affecting a large group of people.
Mr Chiarelli: Under the Premier's guidelines, do you think it would be appropriate to participate in cabinet discussions?
Hon Mr Evans: Yes, I think it would be all right.
Mr Chiarelli: Thank you.
Mr Scott: Chief Justice, as I understand it, you run the Members' Conflict of Interest Act; you do not run the Premier's guidelines.
Hon Mr Evans: Correct.
Mr Scott: He is Chief Justice Evans for the guidelines.
Hon Mr Evans: That is right.
Mr Scott: Yes, or the executioner as I call him.
Hon Mr Evans: Those are your words, not mine.
Mr Scott: Yes. There has not been much executing going on, but that is what I call him.
The fact is that the guidelines the Premier has released do make reference to your act in one or two places.
Hon Mr Evans: Right.
Mr Scott: So they are connected in that sense. I just want to ask you some questions of fact about those connecting points and then a question about your opinion on another matter. In paragraph 16 of the guidelines it provides, "Business interests permitted by the Premier to be retained under the above paragraph" -- those are non-divestible businesses -- "shall be placed in a trust under section 8 of the Members' Conflict of Interest Act," and when you look at section 8 you see that it requires that the terms of the trust and various other matters be approved by you. Have I got that right?
Hon Mr Evans: Yes.
Mr Scott: Now what I want to ask you is, at any time have you been asked to approve the terms of a trust into which the assets of a minister of the crown or parliamentary assistant are to be put?
Hon Mr Evans: No.
Mr Scott: Not at all? All right. Second, paragraph 18 of the Premier's guidelines has, I believe, the following effect: It is the Premier's requirement that the monetary standard under which a gift requires reporting to the Conflict of Interest Commissioner will be reduced from the level set in the statute. Do you agree with that?
Hon Mr Evans: From $200 to $100?
Mr Scott: Yes.
Hon Mr Evans: Yes.
Mr Scott: What I want to ask you is, have you since 1 October received any disclosures under paragraph 18 from ministers or parliamentary assistants in this government?
Hon Mr Evans: Yes.
Mr Scott: Can you tell me or provide to me on another occasion the names of ministers or parliamentary assistants who have made that disclosure?
Hon Mr Evans: Certainly.
Mr Scott: I know your good right hand is sitting on your left hand and perhaps you can ask her to do that for me.
Third, under paragraph 29 of the Premier's guidelines, there is a provision, and I understand what it asks ministers to do, though I must confess I do not understand why. It says, "Upon appointment to the executive council or upon an assignment of new responsibilities within the executive council, ministers" -- and I presume that means ministers who receive a new appointment or a new assignment; it could not mean all ministers. Do you agree with that so far?
Hon Mr Evans: Right.
Mr Scott: To continue, "ministers shall request an opinion of the conflicts commissioner under section 14 of the Members' Conflict of Interest Act." When you see section 14, again you will see why I do not understand exactly what is planned here, but I simply want to ask you a question of fact. Since 1 October four persons have either been appointed for the first time as ministers or have had newly assigned responsibilities. Those are Mr Wilson and Mr Charlton and Ms Lankin and Ms Churley. The first three, I guess, received new assignments, new responsibilities. I am sorry, no. Three were new appointments; the third, Ms Lankin, was an assignment of an additional responsibility, of a new responsibility as Minister of Health.
I want to ask you if up until today's date any of them has, as contemplated by section 29 of the Premier's guidelines, requested an opinion of you under section 14 of your act?
Hon Mr Evans: Three.
Mr Scott: Three.
Hon Mr Evans: Churley, Wilson and Lankin.
Mr Scott: Yes, all right. Thank you. Have you provided those opinions?
Hon Mr Evans: Whatever they asked I provided, yes. Frankly, I do not quite understand what the section means.
Mr Scott: I do not understand it either. If the ministers understand it or the Premier understands it, they are one up on all of us. But that is to be expected; they are big shooters and ministers.
Hon Mr Evans: I think there was a little difference. If you had someone who was appointed parliamentary assistant and who comes in, yes, I would explain to him in detail what the problems are that he might encounter.
Mr Scott: Yes, this is one of the questions of opinion. Apart from a parliamentary assistant who is moving up a notch on the greased pole, can you understand what could be intended by saying that ministers shall request an opinion from you under section 14 when they move from one ministry to another?
Hon Mr Evans: No, I do not.
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Mr Scott: Just one other question, and I do not want to deal with any individual cases, because that is another matter. I would like you to look at section 24 of the guidelines. This is a question of opinion I am asking you, so I think everybody will understand the answer is your opinion, perhaps shared by your loyal executive assistant, but it is not necessarily the opinion of all the world. It is an opinion I am requesting, not a statement of fact.
It provides, "Where a minister's constituency office undertakes activities in which members normally engage..." and then it says "ministers shall take all reasonable steps to ensure that their office as minister is not used to further the interests of the constituent."
These guidelines are to clear the air, of course. I would like to know what your opinion is as to what steps a minister should take that would be characterized as reasonable steps to ensure what the section plans to ensure.
Hon Mr Evans: I think you have to look at the guidelines and also at section 5 of the act, which provides, "This act does not prohibit the activities in which members normally engage on behalf of constituents." So somehow or other, you have to work the two in. The fact that you may become a parliamentary assistant or a minister does not deprive you of the right to look after certain constituency activities or certain constituents, but I think you have to be very careful in how you handle them. There has to be a separation of the minister's office and the constituency office.
Mr Scott: What would you think would be reasonable steps taken by the minister to ensure that separation?
Hon Mr Evans: I think he should have very definite guidelines for his staff.
Mr Scott: Would you recommend that those should be in written form?
Hon Mr Evans: To protect himself, I think they should be, and the staff as well. It is a lot easier to have them there in writing.
Mr Scott: So the first thing would be written instructions to the staff. Would it be desirable to personally discuss those written instructions with the staff to assure a level of understanding?
Hon Mr Evans: I would think so.
Mr Scott: Would the instructions perhaps, if they were to be reasonable in the circumstance, contemplate the use of the minister's name in connection with material or letters?
Hon Mr Evans: I suppose in the minister's constituency office the correspondence goes out of there, and I take it under his name, so the office of a particular minister. I would not want someone signing my name to too many documents.
Mr Scott: Let me give you a personal example from my own experience. As the member between 1985 and whenever I stopped, 1990, constituents used to come to me asking me to communicate with the Ontario Municipal Board, almost invariably words of praise, but occasionally prayers for relief. I always took the position that because that was a board that reported to the Ministry of the Attorney General and to me, I had no right, and it was improper, as a minister or indeed as a member, to carry messages to the board from my constituents.
Hon Mr Evans: I suspect that is a good practice, particularly if the government-appointed board happens to fall within the confines of the ministry. I would think you would stay far away from that, and your constituency office as well.
Mr Scott: So should the minister give instruction to his staff, bearing in mind what his cabinet portfolio is, about their relationship with agencies with which he does official business?
Hon Mr Evans: I would think that would be a practice.
Mr Scott: Should that be fairly detailed to be helpful?
Hon Mr Evans: I suppose that depends on your staff. If they are competent and experienced staff, probably you do not have to spell it out too often, but if it is new or inexperienced staff, yes, I would think you would have to spend a little more time with them.
Mr Scott: I take it goes without saying that in respect of new staff, the burden on the minister becomes greater.
Hon Mr Evans: You would really have to have an orientation week, I suppose, to acquaint them with their duties and responsibilities.
Mr Sorbara: Chief Justice, you are carrying out an investigation now on the Minister of Community and Social Services, Zanana Akande, is that right?
Hon Mr Evans: Correct.
Mr Sorbara: Can you just tell the committee when you propose to report your findings and how you propose to report your findings, and the problems in the act with reporting the findings of an investigation undertaken by you in your capacity as commissioner?
Hon Mr Evans: If I start at the top, there is an investigation. It is now complete. The documents will be available tomorrow. There is no provision in the act as to how this is to be handled, so we spent a day trying to figure out something with the Speaker and the Clerk of the House, and we finally arrived at what we trust is a solution to the problem.
Mr Sorbara: What is that solution? Do you feel you are at liberty to report your solution, not the findings, but how you propose to report, in what form and to whom, in the government and in the Parliament?
Hon Mr Evans: I can tell you it will be in writing.
Mr Sorbara: Good. That is helpful.
Hon Mr Evans: Our present plan is to deliver it to the Speaker of the House in the morning, and then the leaders of the three parties, the ministers involved and the complainants will receive a copy after it is tabled -- no, I am sorry -- about one hour before.
Mr Sorbara: One hour before it is tabled. I see.
Hon Mr Evans: Then we will deliver a copy to the mail room for each member, and then we will also deliver copies to the press room. What we are trying to do is to avoid disclosure prior to its being tabled. We do feel that those cabinet ministers involved, those who made the complaint, the leaders of each party, should have the material a little bit in advance.
Mr Sorbara: So your statutory obligation, as you decided, is to deliver a report to the Speaker and then to disseminate the information to interested parties in a fair and timely and appropriate way.
Hon Mr Evans: Yes. When you are at it, if you are going to amend the act, please set out a procedure; then we will have something to follow. I think we will find out tomorrow how it works.
Mr Harnick: My lord, in the course of that investigation you have now completed, the investigation, I gather, and I am not after any contents, but the investigation was based on the conflict guidelines and an interpretation of those guidelines.
Hon Mr Evans: All I deal with is the act.
Mr Harnick: Did the investigation involve any consideration of the guidelines?
Hon Mr Evans: Not by me.
Mr Harnick: Was there any consideration of the guidelines that you are aware of by the Premier in conjunction with your investigation under the Members' Conflict of Interest Act?
Hon Mr Evans: Not that I am aware of.
Mr Harnick: You have indicated on a couple of occasions that those guidelines are draconian. I think that was the word you used again today.
Hon Mr Evans: It has been bandied around a bit, but I am certain I said it.
Mr Harnick: Can you tell us why that is your opinion?
Hon Mr Evans: I think it is a very tough regulation to apply, and while I have a great respect and admiration for people like Mother Teresa and Jean Vanier and others who go down as teachers to Third World countries, who divest themselves of everything, I have a little difficulty with the general public, with people who have some measure of success in their professional life. They accumulate assets, and I am not too sure they want to turn them over to somebody else to administer. They feel they can do it themselves and, if they do turn it over to somebody else, then you would have to have a certain very strict compartment in which those assets would be put, and they should be controlled by someone whose contact with the settlor is minimal. I think the government should pay for it in that instance.
Mr Harnick: That is assuming they fall within an exception and can go into a trust.
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Hon Mr Evans: Right. I do not think too many things have to go into a trust, but there may be situations.
Mr Harnick: But if we follow the section, it indicates that unless you fall into an exception it is straight divestment.
Hon Mr Evans: You are talking now about the guidelines. Yes.
Mr Harnick: What effect would the implementation of section 15 of the guidelines, in your opinion, have on the system of government of this province?
Hon Mr Evans: I suspect a lot of people who are now in the Legislature would not be here if they knew what they were faced with at that time, a set of guidelines that strict. I think it would inhibit people from running, and I assume we want the best in the Legislature that you can get.
Mr Harnick: Certainly the largest cross-section of people.
Hon Mr Evans: The best of the cross-section.
Mr Harnick: All right. In terms of these guidelines, is there anything in the conflict-of-interest disclosure sections which in your opinion do not accomplish what this divestiture is supposed to accomplish? I am looking for, first of all, the weaknesses, if any, in the system of disclosure which in your opinion could be improved so that it would be as tough or as effective as the necessity to divest.
Hon Mr Evans: Under the guidelines, the divestment is strict. It says "any asset" -- divest themselves of any asset -- "liability" -- everybody would like to divest themselves of liabilities, I assume -- "or financial interest which causes or could appear to cause a conflict of interest." That has always bothered me a bit. What is going to cause it? Whose perception is it of what is going to cause a conflict of interest?
Then "all business interest." You would have to have a definition, I take it, of a business interest, if you own a condominium in addition to your residence, or two of them, whether that is a business. I do not see it that way. To me a business is something in which you are actively engaged, and the other is more in the line of an investment. If you had to divest yourself of an apartment you happen to have next door, or whether it is a triplex or fourplex, I would think that might cause considerable inconvenience to people. In other words, you have an apartment building next door, and it does not take you much time to have your kids out cutting the grass and painting it, removing the storm windows; it does not cause you much trouble to operate. To say you are going to have to take that and put it into a trust and pay the trustee to collect the rent, manage the building, I think is, I might say, unnecessary. I do not think it is necessary.
Mr Harnick: When we went through the original brief hearing period in February, we had two divergent opinions. The first opinion, from a group of former Liberal cabinet ministers, was that they could not have become cabinet ministers if this divestment guideline was in effect, or they certainly would have chosen not to become cabinet ministers under that circumstance. We had a number of current ministers who came and said everything is related to public perception, and that the reason we need divestment is based on public perception; that was the only reason people had to accept section 15 of the guidelines. Can public perception be satisfied, in your opinion, under the disclosure rules of the Members' Conflict of Interest Act?
Hon Mr Evans: No, I do not think you can ever satisfy an individual's perception.
Mr Harnick: Could you satisfy an individual's perception with divestiture?
Hon Mr Evans: That is very questionable, too, because you would want to know who the trustee is and what the relationship is, if any, between the trustee and the settlor. I think it is a difficult area. Public perception, what one person believes may not be true at all, but in their mind they form a conclusion when they may not have all the facts. I do not know what criteria we use. You can get some guy coming off the wall down there who objects to every cabinet minister and is going to have something to say. He has a public perception of what they are doing. He has a perception of something as going wrong, because he is not informed.
Mr Harnick: In your opinion, is public perception justification to make these guidelines law, including the divestment section particularly?
Hon Mr Evans: I do not think they are necessary, but I take it that every Premier has the right to lay down certain rules for his cabinet. That is one thing. The act applies to the cabinet and he can make whatever rules he wishes. The cabinet will comply, and if they do not comply, out they go. But when you get down to the whole government, that is, the members of the Legislature, you have to have a statute of some kind if you are going to enforce it, and that is a little different. I think they are two separate things, really. I think the conflict of interest act is for everybody and the guidelines may well be applicable for -- one Premier may like that and another Premier may not.
Mr Harnick: Would it be your recommendation that the guidelines remain guidelines, separate and apart from the conflict of interest act?
Hon Mr Evans: Yes, provided that some changes might be made to the conflict of interest act. I think it needs a little overhauling, because it was a new act and there are holes in it that might be plugged up. Some of the guidelines might be used. Whether it is $100 or $200 on a gift does not make too much difference, as far as I am concerned. I do not think it makes too much difference to the legislators either.
Mr Harnick: Would it, though, be your opinion that the guidelines would be better left out of the act so that each successive Premier would have control over the guidelines that he would set for his particular executive council?
Hon Mr Evans: Yes.
Mr Harnick: In fact, that appears to be the opinion of this Premier, if you read the guidelines, because it is this Premier who makes the decisions as opposed to the conflict commissioner.
Hon Mr Evans: It is true.
Mr Carr: As part of the summary of some of the recommendations and issues, when you came before us last time, and this may be paraphrasing a little, you said:
"Neither the ministers nor their parliamentary assistants should make representation on behalf of constituents before government agencies, including the Workers' Compensation Board and the Liquor Control Board. There must be a level of non-interference by ministers and parliamentary assistants. Instead, the constituency office should be making those representations, but without waving a flag about the minister's or the parliamentary assistant's position."
What did you mean by "waving a flag"?
Hon Mr Evans: I think most ministers feel they still have constituents out there and they want to keep them for the next election, so they feel they have to do something in the interests of those particular people. But if it is the Minister of Labour, I do not think his constituency office should even be involved in discussing matters with the Workers' Compensation Board. That does not mean that the minister of something else could not have his constituency office acting for someone before the board.
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Mr Carr: So of course the Solicitor General should not be dealing with anybody in justice. That would be an example you could use as well.
Hon Mr Evans: The police departments?
Mr Carr: Yes.
Hon Mr Evans: That is right.
Mr Carr: And all justices of the peace, contacting a judge like yourself, that should be a no-no.
Hon Mr Evans: I do not think any minister or parliamentary assistant should be contacting a judge at any level of the judiciary.
Mr Carr: When the Premier came before us, what he said is that they should be allowed to do normal constituency work.
Hon Mr Evans: That is true.
Mr Carr: But in this case, in other words, what we are talking about is not whether we have waved a red flag because of the signature on there, but that there should be no contact whatsoever between any member of the --
Hon Mr Evans: That is just my opinion, whether it should happen. Section 5 does not prohibit the activities in which members normally engage on behalf of their constituents, but I would think that with a minister with a certain portfolio, and some administrative body appointed by the Ontario Legislature falls within the jurisdiction of your department, I do not think you, your parliamentary assistant or your constituency office should be near it.
Mr Carr: So even if it was a situation where you used, say, constituency letterhead and it just said, as an example, "MPP for Cambridge," and it did not have anything to do with the Solicitor General, that still should not be sent out to --
Hon Mr Evans: I think it is hard to divorce. If I am sitting there and I am involved with the Workers' Compensation Board and I get a letter on the letterhead of a minister, I might think twice about it. I did not get many letters when I was a judge.
Mr Carr: You were not a judge when this government was in power, though.
My next question deals with the letter that you say you did not receive until 17 April. You were first informed about it by, you said, the Liberal Party.
Hon Mr Evans: Somebody from the Liberal Party sent it to me, yes.
Mr Carr: What was the date again on the --
Hon Mr Evans: As I recall, the late afternoon of 17 April.
Mr Carr: The actual date of the letter was what date?
Hon Mr Evans: That is 12 February. That arrived by fax machine.
Mr Carr: So you got a 12 February letter on 17 April.
Hon Mr Evans: Right.
Mr Carr: Did you inquire with either the Premier or anybody in his office as to why that occurred?
Hon Mr Evans: No. I do not think I have any right to question the Premier on how and why he does things.
Mr Carr: So when something shows up, you just take it and file it.
Hon Mr Evans: I read it and file it.
Mr Carr: Is this the normal contact or do you have a formal way of going through to the Premier's office? Is this normal practice to receive things later or is this the only occasion?
Hon Mr Evans: I receive packages from many members and from the Premier's office as well, but there is no particular routine set up whereby he would advise me.
Mr Carr: We have talked a great deal about perception, and the Attorney General, when he came in, said that it is really not a matter of law but of public perception. As somebody who has been involved in the law and knowing what has gone on over the last little while -- and I think you said that perception is in the eyes of the beholder, or words to that effect -- I was wondering, specifically with yourself, what your perception is of what has happened over the past little while, what you would categorize as the perception of the conflict-of-interest guidelines. Do you think we are better off now than we were before this Premier's guidelines were introduced, or do you think the perception is now worse as a result of the activity?
Hon Mr Evans: It is pretty hard for me to say what the public perception is. I can only say what my own is.
Mr Carr: No, yours.
Hon Mr Evans: I do not think it is much different. I am not a great believer in this public perception. You have probably guessed that by now.
Mr Carr: But as a judge, you do not have any opinions of what the perception is, no personal feelings of where we are at now with this? Surely as the person who has to administer this, and I know as a judge you sometimes have to leave things aside, in your office you must have some idea of what the perceptions are out there, whether as a result of your work things are getting better or are getting worse. Just your personal opinion.
Hon Mr Evans: I think judging by what I read in the papers, the public perception of legislators is like the public perception of lawyers and accountants -- it is not high. We rank above used car dealers, but not too far. So it is very hard for me to say what the public perception is.
I think the public perception is wrong. I have a better perception, I think, of members of the Legislature than some guy out on the street who does not know any of them, has not had any dealings with them. In my view, they are a very good group; somebody out on the street may not think so, because he does not know them. I do not know how you can form an opinion of somebody unless you know the facts of the situation and know him and know something about him or you have facts upon which you can judge him.
That is how we used to think a jury worked anyway. When you get 75 or 100 people called in and then you pick 12 out and send the rest home, you expect that those 12 people are going to be reasonable, well-informed, non-partisan and intelligent people who will come up with a proper decision, and I think in most cases they do. You are able to present evidence to them, they know the facts, and you tell them what the law is, or what you believe it is anyway.
Mr Carr: As a result of having taken a long, hard look at this, if you could sum it up in order to change the perception, what would you recommend to the Premier that he do now as a result of this? We have come in and attempted to try and clean up and make the perception better, and quite frankly, I think we have taken one step forward and about nine steps back. What would your recommendations be if the Premier asked you?
Hon Mr Evans: I am rather hesitant to advise the Premier of anything. I do not really think that is my function. I think I know what he was trying to do: to improve the perception, or what he felt was the public perception. I do not think the guidelines are much of an improvement over the act. There may be a few things in there that should be worked into the act. I think the act needs a little revision and I think you could come up with the same thing without any guidelines whatsoever.
Mr Carr: You have not been asked personally for any of your thoughts by the Premier in light of what has happened over the last little while? You have not been asked to sit down and go over it?
Hon Mr Evans: No.
Mr Carr: One final question, if I could. When we talked about going way back, there was some discussion about who should be the final judge over the circumstances. The Premier, at the time he came in, said that he is the elected representative and so he is the final judge, because people can judge him. There was quite a bit of actual debate with some of the cabinet ministers who came before us, the Minister of Natural Resources and the Chairman of the Management Board of Cabinet. I think they struggled a little bit when we asked them that question. In light of what has happened over the last little while, do you think it should be changed to make you the final authority and judge over it, or do you still think the elected Premier, regardless of political stripe, should be?
Hon Mr Evans: I think if you have a piece of legislation, you should appoint somebody, as you have done, and that person should be given the authority to reach a conclusion, a decision on it. But if you are going to have guidelines, I do not think that is my function. I think I only act pursuant to a piece of legislation.
Mr Carr: What if, for example, the Premier comes to you and you give a recommendation. Do you think that recommendation should be made public in all cases? The Premier then would have the authority to disagree and say: "No, I disagree with Judge Evans. This person is still going to remain." Do you think that should happen, or do you think it should be left to the discretion of the Premier, sort of quietly?
Hon Mr Evans: Are we speaking now about the guidelines?
Mr Carr: Yes.
Hon Mr Evans: I think if the Premier wants to make a decision, he can fire any cabinet minister he wants; he does not have to ask me.
Mr Carr: But if you were doing any type of investigation, do you think that investigation should be made public?
Hon Mr Evans: If I make an investigation, it is public. There is a provision in the type, almost, of request that is made. If one goes to -- what am I looking at now? -- sections 15 and 16, a member can make a request or lodge a complaint and I will make an investigation. That is normally just an informal investigation, but it can be under the Public Inquiries Act. In that situation, I go to the Legislative Assembly, by a resolution under subsection 15(2), and give an opinion, and then the executive council requests an opinion. If I receive a request under section 15, I conduct an inquiry, and then where the request for an opinion is made under subsection 15(1) or 15(2), the commissioner shall report to the Speaker and he lays it then before the assembly. Where the request for the opinion is under subsection 3, which is the executive council, then the commissioner reports to the clerk of the executive council. I do not know what they do with it, and it is not my problem.
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Mr Carr: With the circumstances that we have had over the last little while, and speaking maybe again about public perception, the perception is that this whole process is very difficult. The people who have difficulty complying with the circumstances -- we have some who did not, for various reasons, and we have some who have complied, some who have some extensions, whatever. Is the process that complicated? I look at it and say it should not have been as complicated and as confusing as it is. Would you agree with that? Is there something we are doing wrong that has made it so absolutely confusing for everybody?
Hon Mr Evans: I think people get carried away with public perception, I really do.
Mr Carr: In other words, what has gone on over the last little while is not abnormal to you. The circumstances of some people complying with the guidelines and other people taking a little bit longer, you see no problem with this. This will probably be a standard way of operating, then.
Hon Mr Evans: Yes, and I think when you are doing an amendment to the act, you should give a little discretion to the commissioner to do certain things.
Mr Harnick: You made reference to the fact that you would not mind seeing some of these guidelines as part of the conflict of interest act. Rather than waste your time to go through it and explain it, is there any way you could provide the committee with a summary of those guidelines that you think should be incorporated into the conflict of interest act?
Hon Mr Evans: Yes, we could do that. I could do that.
Mr Harnick: I think that would be helpful for us.
Mr Fletcher: Thank you for coming back, Judge Evans. I just have a few questions. Are the Premier's guidelines right now tougher than the previous guidelines? Do you feel they are tougher?
Hon Mr Evans: Yes, I think they are a little strict.
Mr Fletcher: Do you think they are too tough to try and enforce?
Hon Mr Evans: No; that is, if we can get on the same field.
Mr Fletcher: Okay.
Hon Mr Evans: Which ones are you talking about?
Mr Fletcher: The Premier's guidelines now. Are they tougher than the previous guidelines?
Hon Mr Evans: That were put in by the previous administration?
Mr Fletcher: By the previous administration, yes.
Hon Mr Evans: I would say they are. I do not know too much about the other guidelines because I did not have anything to do with them.
Mr Fletcher: Do you think they are too tough to enforce?
Hon Mr Evans: The present ones?
Mr Fletcher: Yes.
Hon Mr Evans: I think they would be difficult. I think it would keep the Premier busy.
Mr Fletcher: And yourself?
Hon Mr Evans: I do not have anything to do with the guidelines.
Mr Fletcher: That is right. I was just wondering. When you were here last time, you made comments about when things were being put into blind trusts. One of the comments you made was that ministers always know what is in the trusts. When I look at the Peterson guidelines --
Hon Mr Evans: I never saw them.
Mr Fletcher: Did you not?
Hon Mr Evans: No.
Mr Fletcher: Well, let me just read a part of what was okay to do, and this is if a company or a holding was put into a blind trust. "It shall be the responsibility of the trustee to ensure that if any matter affecting the interests comes before the ministry for which that minister is responsible officials in the Premier's office are advised so that a colleague of the minister can be appointed to act for the ministry concerned for purposes of dealing with the matter." In other words, if there were a contract with the ministry for which there was a minister who had a holding --
Hon Mr Evans: That is similar to the provision in the act.
Mr Fletcher: Going back to your other statement about, "Everyone knows what is in a trust, even the minister who is holding it," the conflict can still be there.
Hon Mr Evans: That is why I say they called it a blind trust and nobody liked that term, so then they called it a management trust, but it did not really change it. If you have assets and you turn them over to a trustee, you know what is in the trust.
Mr Fletcher: Right.
Hon Mr Evans: If the trustee sells anything in there, then he has to report to you and to the commissioner, so you still know what is in there. If you are worrying about the person voting because he might benefit himself, he still knows what is in there. The difficulty is that nobody else knows what is in there.
Mr Fletcher: I think that is one of the reasons the present Premier is trying for the divestment, so that there will not be that perception of conflict.
Hon Mr Evans: I do not see anything in the guidelines that says, if there is a divestiture, then there are certain things you cannot divest yourself of. It is understood the guidelines provide for that, and if there is going to be a hardship, so where are you with those assets? They are not in a trust. You still have them.
I think there should also be a provision, if you are going to amend the act, which I hope you will, to somehow or other provide for notification to the commissioner if there is any substantial change in assets. I have told all of you, and you will recall, as you came in, after going through your disclosure form, if you had any particular substantial change to please let me know. Most of you have done so. If you did not tell me I would not know, but otherwise nobody would know until the next disclosure, which is several months down the road, a year from your first one.
Mr Fletcher: The present Premier's guidelines are just guidelines. You are not acting under those guidelines right now. Are we?
Hon Mr Evans: Are you acting under the guidelines?
Mr Fletcher: I know I am.
Hon Mr Evans: The parliamentary assistants and the members of the executive are.
Mr Fletcher: Right, but no other members are acting under these guidelines. Right, that is what I thought. If the Premier wished to amend the guidelines, that is up to the Premier. Is that correct?
Hon Mr Evans: As far as I am concerned, sure.
Mr Fletcher: I thought so.
Hon Mr Evans: It is whatever he can get his --
The Chair: We seem to be speaking very sotto voce, and I am wondering if it is possible for members to restrain their conversations so that we can all hear the testimony.
Hon Mr Evans: If the questions were placed a little louder -- it must be my age or a bad day or something, I am having a little trouble hearing. When I notice these people on the question period, they seem to be much louder.
The Chair: They do.
Mr Sorbara: Certainly not the Chair of the committee.
The Chair: There is probably a great deal of respect for yourself, Commissioner.
Mr Winninger: Some of us need no microphones. Chief Justice, when Mr Harnick asked you if you agreed that these guidelines were draconian, you gave what I thought to be a restrained response. You suggested that it may in fact deter the best and the brightest from seeking public office.
You have probably read over the exception in paragraph 15 of the guidelines several times. I would ask you whether you agree with me that the wording of that exception, that is, "where...the interest has been fully disclosed, that undue hardship would be created by divestment, that retaining the interest is not inconsistent with the public interest and that the minister has given appropriate undertakings to avoid a conflict in respect of the interest," goes a considerable way towards taking the sting out of the guidelines.
Hon Mr Evans: It would.
Mr Winninger: And that perhaps the best and the brightest might not be deterred from seeking public office if they knew that, if divestment were unjust under the particular circumstances --
Mr Harnick: Only if they had a side deal with the Premier-to-be beforehand.
Hon Mr Evans: I take it when you are running for office you do not know who is going to win, who is going to be the Premier. You do not know whether you are going to be in cabinet, you do not know whether that particular Premier wants everybody like Ivory Soap, 99 44/100% pure, or just what you are going to have. So how are you going to know when you are down there? If somebody is asking you to become interested in running as a candidate in the election, how do you know what the Premier is going to believe or do? He may change his mind, and then you may find yourself in the unhappy position that you come up and you want to retain certain things and the Premier says, "I don't see any case of undue hardship here." You are then faced with a problem. You either do not accept the cabinet position or parliamentary assistant position or you divest.
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Mr Winninger: You agree then that it is a matter of discretion for the Premier of the time as to whether these circumstances are just or not?
Hon Mr Evans: That is true. Another thing is, though, when you are dealing with that, it talks about the "appropriate undertakings." "The minister has given appropriate undertakings to avoid a conflict in respect of that interest." I am not sure just how that is going to be worked out, that you are going to give an undertaking to the Premier that you will not vote with respect to these assets that you hold.
Mr Winninger: I do not have the answer to that, but I do have a question for you. There may be circumstances in fact where perhaps it is an ill time to sell some real estate holdings or it is a bad time to divest a business, and yet with an undertaking that the particular member will not indulge in any potentially conflictual activities, that minister might be allowed to continue to hold that real property or that business until such time as the market is better to divest it.
Hon Mr Evans: That might work for Minister A, but if Minister B feels he is in a similar position and he is not granted that privilege, I would think that would cause a little ruckus in cabinet.
Mr Winninger: Finally, though, you would agree with me that there is scope for that kind of exception under the broad language of this exemption in the guideline and that discretion can be exercised. The Premier is not binding his or her hands in setting forth these guidelines when there is a broad exception clause incorporated into the guidelines.
Hon Mr Evans: When you look at clause 15 of the guidelines, "Ministers are required to divest themselves of (a) any asset, liability or financial interest which causes or could appear to cause a conflict of interest" -- could appear to whom? I take it it must be the Premier -- and then, "(b) all business interests." What are business interests? I think you would have to have some definition of that. Is the holding of one piece of property or an investment building carrying on a business? I think that is one of the things that would have to be ironed out.
Mr Winninger: So if I hear you correctly, you would like to see some kind of inclusion after the word "appear" to indicate to whom the appearance of conflict would be?
Hon Mr Evans: When you say "or could appear to cause," that means, again, that is a public or a private perception, whatever it happens to be. Is the private perception the Premier's perception or whose is it, or do you need it in there at all? I would think "a financial interest which causes a conflict of interest."
Mr Winninger: And further, you would like to see "business interest" defined.
Hon Mr Evans: I would. I think there is a difference between a business interest and an investment. What is your main business and occupation? A lawyer, for instance, has a couple of buildings that are rented and one is commercial and he may have an office and he rents it and it may have a couple of apartments upstairs. I do not look upon that as, and I do not think an ordinary definition means that is a business as opposed to your normal business of being a lawyer. That is an investment, in my book. A business is a shoe store or something you actively engage in.
Mr Mills: Thank you, Chief Justice Evans. I am very pleased to have you here this afternoon and to listen to your comments. I might add, your presence here has instilled a sense of behaviour in this committee that I have not seen for many, many weeks. We all seem to be very respectful and subdued.
Hon Mr Evans: Maybe they think I have the powers of contempt.
Mr Mills: I think so, because some of the gents here really do not interrupt. It is a wonderful day today in our behaviour, our decorum.
Mr Sorbara: Where is this line of questions leading?
Mr Mills: We are coming to that. Lots of the questions that I had intended to ask I appreciate now are going to be answered through Charles's request that you are going to come back to us with some recommendations as to how you see this to be, so I am not going to take up time to ask all those questions.
I have a couple of points. We had a Mr Sweeney here and he said that in his tenure as a minister he went through eight parliamentary assistants. Being a parliamentary assistant, I have some empathy with what he was saying. I know that a role as a PA is precarious in that we could be come and gone, but I suppose the same could be said for ministers in what is going on now. Nevertheless, do you feel that as parliamentary assistants we should be subjected to the same guidelines as a cabinet minister?
The reason I ask that is that we have Mrs Mathyssen here. We came into the government and she sort of suddenly became a parliamentary assistant. She has not had that opportunity, if she had any divestment to do, and I am just wondering, sir, do you see some benefit or any benefit at all in lumping together what a parliamentary assistant should do and what a cabinet minister should do? In my experience so far, we do not seem to have that knowledge of all that goes on that a cabinet minister would and I am just wondering, does that make sense to you?
Hon Mr Evans: I understand the life of a parliamentary assistant in many other jurisdictions is a pretty limited one. You may be in and out, the theory being, I believe, in the federal House that they move them around so that they will all get experience. Therefore potential cabinet ministers become parliamentary assistants and then they move on, either to become another parliamentary assistant or back where they came from, and they may be recycled a year or so later.
I myself think there is a difference between cabinet ministers and parliamentary assistants. I think of the responsibility. It depends, I suppose. I have heard this, not in this Parliament but in others, and some parliamentary assistants I have known have said: "The cabinet minister paid absolutely no attention to me. I might as well have gone home." With others, the parliamentary assistant was given considerable responsibility by the minister. So I take it the responsibility as a parliamentary assistant depends upon the rapport which he has with his cabinet minister. With some it is good, some it is terrible, some it is excellent.
I think there should be a distinction, yes.
Mr Mills: So in your recommendations, would that be one area that you might address?
Hon Mr Evans: I would think that is one area I would speak on.
Mr Mills: Another question I would like to ask is about the role of the parliamentary assistant in the constituency office. I see here, if I can just read it, "They shall not normally engage on behalf of constituents in activities in which their office is used to further that interest." Notwithstanding the fact that there are certain rules and regulations that one would automatically sort of recognize, how can you represent people when somebody comes in there and asks about a problem that is contingent on the ministry that you work for? What would you do? Would you suggest, "Could I," -- and I have to serve my constituents -- "advise the people who work for me of certain guidelines," and then, "Okay, you act as the constituency assistant in that matter"? That does not force my constituent to go somewhere else and seek some advice just because I happen to be with the Solicitor General.
Hon Mr Evans: But I think the minister pays a price in becoming a minister as far as his constituency office is concerned. I think the same applies to a parliamentary assistant. I think if I had that situation of somebody coming in, and say you are the Minister of Labour; somebody comes in who has a complaint to make about the Workers' Compensation Board. I think you would be wise to send it over to somebody else, not handle it yourself.
Mr Mills: I see.
Hon Mr Evans: That is safer, because I do not think you can really separate the minister from the constituency office, and I have problems separating the parliamentary assistant from the constituency office.
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Mrs Mathyssen: I am delighted to see you again, Judge. I would like to follow up on what Mr Mills said and assure you that my poverty is such that we do not have to worry about a thing with regard to my recent change of job.
I would also like to continue with a question that Mr Mills raised regarding this whole problem as it pertains to a member by virtue of the fact that he or she is a PA or a minister, not being able to effectively represent constituents, and get back to some of our current problems. Would you recommend that it might be a good thing to include in these guidelines another paragraph indicating that a minister or a PA should indicate in writing to a constituency staff member what is and is not permissible? Would something concrete like that in the guidelines be a good idea?
Hon Mr Evans: Yes, I think they should write that out, put it out. The point is there are not that many, as I understand, in a constituency office. You may have two or three, I am not sure, but I think you should write it out and discuss it with them, make sure they understand it and hope for the best, hope that they will understand. If I were doing it, I would have my regulations set up and formally written out. I would have a discussion with all the constituency office staff members. I would have them sign it, so they could at least say they heard about it anyway. I do not know how much protection it would be for you if something went wrong, but I think it would be some.
Mrs Mathyssen: It would at least provide some clarity, some absolute clarity.
You were talking before about trusts. How long does it take to set up a trust? If I, for example, needed to set up a trust, how long would it take me to do that?
Hon Mr Evans: Let's assume that you have a bunch of treasury bills and bonds and stuff like that. It is very easy. As long as you do not have to pay for it, or somebody is going to pay for it, you can go down to any trust company and it will receive you with open arms. That is a very quick method of doing it. If you had to set up a trust involving a bunch of real estate and shares in corporations, or partnerships in which you have an interest, that would take longer. You may have some difficulty in finding people who want to take it over, depending upon what the situation is, because if you have a very limited interest in a development company or something like that, your trustee may not have the same right to demand, and maybe you do not have very many rights to demand, where the company is going, what its projects are for next year and things of that nature, because it will say: "That's not the business of the shareholders. We have an executive. If you're not on the board of directors, then it's not your business." The trustee would be in a similar position; he could not get that information. But timewise, in ordinary affairs, it does not take long.
Then of course we have to get the approval by the commissioner of the trustees. That is just to make sure that it is at arm's length, that it is not your cousin or your brother or somebody like that, or a partner in the law firm. If you are going to have a trust, you have to have a real barrier between the member and the trustee.
Mrs Mathyssen: What is the current way that ministers or PAs report the gifts that they receive? Do they report each gift individually immediately?
Hon Mr Evans: Yes. I think that is best. It is not provided for, but we would like to set up a register with Mr DesRosiers, probably set something up of that kind so that if gifts are made, then they are reported to me. I, in turn, would report to him, but at least we keep it in our office anyway. But we would like them to report as the gifts are received. Some like to report them a long time afterwards, and sometimes that is all right, but you get a call sometimes that somebody has some tickets to go to a dinne r and that has always been a bit of a problem with me, to find out what is the value of a ticket. It is $300, but you know that the person who gives you the ticket is getting an income tax exemption of $200, for example, so what is the value to you? It is probably $100.
Mr Mills: I would just like to follow up with a comment about the guidelines for our constituency assistants around this conflict of interest. I can remember back in one of my former lives, when I was in the military, we had a book called the SOPs, Standard Operating Procedures. You were given that when you came on stream. You sat down and you read it and at the end, you signed it. After that, if you got in trouble, they would say, "Did you read the SOPs?" You would say, "Yes." "Did you sign it?" "Yes." "Well, you're on your own."
I am just wondering, along those lines, if perhaps to avoid any problems with this in the future about staff members who seem to have misunderstood a little, that might be a good policy, to have some standard operating procedures in place for everybody who works for members of Parliament so that they know where they are coming exactly. Do you see that as a possibility?
Hon Mr Evans: I think that would be a good idea.
Mr Mills: I think so.
Hon Mr Evans: It would probably save a lot of courts martial.
The Chair: Mr Morrow, you have time for only one question. Then to Mr Rizzo and then back to the opposition caucus.
Mr Morrow: Does the 12 February clarification of the Premier's conflict-of-interest guidelines in any way compromise the previous guidelines?
Hon Mr Evans: No, I think it makes it a little easier in some respects. It is a little more detailed; I guess that is about the answer I would have to give you.
Mr H. O'Neil: I would just also like to thank the Chief Justice for coming today. Having had the privilege of being a member for almost 16 years and a member of cabinet for five years, I can tell you that I have had to go to both Mr Aird and to the Chief Justice on several occasions for advice over my five years in cabinet. As likely many of you have found, and as I have found, I could always sit down with both of these gentlemen and ask for advice. I always got what I felt was good advice. I guess it sometimes is the system that I do not totally agree with; I do not think the Chief Justice does either and I do not think Mr Aird did.
The comments that I want to make today are personal comments, but I feel very strongly about them; that is, I guess you know you come into something like this, and if during your life you have been successful in accumulating, whether it may be properties or companies or whatever it may be, if you are lucky -- and I feel in many ways that I have been. But in many ways, having gone into cabinet, because I had some of these assets, I had problems and hardships presented, not only monetarily but other things that caused me problems. Mr Chief Justice, you have referred to some of these. I think Mr Rae and whoever has been advising him have gotten some of his members and some of the cabinet ministers into some problems, because maybe before these decisions were made and these guidelines were drawn up, they should have sat down with somebody like the Chief Justice or Mr Aird or people who have had experience, to know what some of the problems they have come up against were. Some more good, concrete advice could have been given to such people as the Premier before he brought some of these guidelines in.
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I think there have to be stringent guidelines in relation to certain parts of things that people may own. If they are stocks, I personally think they should divest those stocks, but I do not think there should have to be divestments of companies or divestment of properties. I think they have to be placed in a strong management trust with people who are going to look after it. But I think one thing the Premier and some of his advisers have not realized is that sometimes being in political life can be very short-lived. You could be a cabinet minister or parliamentary assistant for six months or a year and you are going to have to divest all these things. Then how do you go back and buy back a property that you had to sell during the time when you were not going to get any kind of the money? You might only be in for one term and have to sell a company, and then what do you have to go back to when you get out of politics?
I think these guidelines the Premier has drawn up are too stringent and they really are too hard on the people. I mean, we are asked to give up enough in public service, without giving up many of the things the Premier has asked for in those guidelines. I am not part of the committee, but I feel so strongly about it that I wanted to come today and say a few words. I feel that this committee has to look into a lot of these problems that have been encountered and I think you have to listen to a lot of the advice that the Chief Justice could give you pertaining to many of these areas here.
I think you will not get people if they really think about it. Sure, as I think the Chief Justice mentioned, you run today and whoever the Premier is, whatever party, he appoints you to the cabinet or as a parliamentary assistant right away. You find that you have to divest yourself of everything you have worked all your life for. I think it certainly presents a lot of problems and I just do not believe in total divestment. I believe in a strong management trust and other strong guidelines.
I should also mention that you mentioned a yearly update. Again, I always found that I could sit down with the Chief Justice and he would bring this up to date if something happened during the year, sometimes asking for advice. I always found that advice was forthcoming, and whether you liked it or not, you got the advice as to what the Chief Justice thought should be done.
Also, Mr Chief Justice, you mentioned about putting things in trust. I can tell you that, as one person, I found that there were certain trust companies that would not handle a management trust or a trust of any kind, knowing what the precarious situation of a minister or a parliamentary assistant might be and what could happen, as has happened in the Legislature over the last short while or happened to us when we were a government. They just do not want to be involved; they do not want any bad publicity. So this presents a problem.
There are other problems. I can remember the first time that I went in, as part of this, looking at a management trust. I think that my accounting fees and my legal fees amounted to somewhere close to $6,000 or $7,000, having the accountants and the lawyers look at putting together a management trust so that I would not get myself into problems. That presents another problem. Sure, people can say, "If you've got a certain amount, you can afford to pay it," but I do not think any minister or any parliamentary assistant should be penalized for having to do some of that. Again, these are my own personal feelings. I do not think it is the party position, but I feel very, very strongly about it.
I do not mean this in a detrimental way in speaking about NDP members, but you only have four or five where we get into certain assets and things like that. But some day, if you form the government again or in the future, you are going to have some people and you want to get a diversification of people who run for it, not to say we do not have now. But as I say, I just feel these guidelines the Premier has brought in can work to be very detrimental to good people wanting to put their names forth and run as members.
I have likely said enough on this now, but again I reiterate, Chief Justice, I know, not only for myself, the assistance you have been to us in the past, and many of the new members in the new government appreciate this.
Hon Mr Evans: Thank you. I should point out that under the federal tax, which has been up and down like a yo-yo -- it got second reading, but that is as far as it went -- there was a provision in there that the government would pay the expenses of the trustee. The setting up of a trust was a payment that is paid by the government, according to the act. The bill has never been passed, proclaimed or anything else.
Mr Chiarelli: I have a couple of process questions in terms of executing provisions of the act starting with section 15, which refers to questions that are referred to the commissioner for opinion.
There are three subsections. Subsection 1 is a reference by a member, subsection 2 is a reference by resolution of the Legislative Assembly and subsection 3 is a reference by the executive council. I am concerned about the particular report you will be having tabled tomorrow. Could you tell us under which subsection the reference was made to you?
Hon Mr Evans: Subsection 1.
Mr Chiarelli: If it was made to you under subsection 1, then I take it that when we look at the question of your inquiry, section 16 covers how that may take place. Section 16(2) says, "Where the request for an opinion is made under subsection 15(1) or (2), the commissioner may elect to exercise the powers of a commission under parts I and II of the Public Inquiries Act, in which case those parts apply to the inquiry as if it were an inquiry under that act." Can you tell us whether you elected to do the inquiry under the Public Inquiries Act?
Hon Mr Evans: I did not.
Mr Chiarelli: That leads me to ask about the procedure and the process of your report. Section 17 deals with penalties and recommendations you might make: "Where the commissioner conducts an inquiry under parts I and II of the Public Inquiries Act for the purposes of subsection 15(1) or (2) and finds that the member has contravened" certain named sections, "the commissioner may recommend in the report that is laid before the assembly, (a) that the member be reprimanded; (b) that the member's seat be declared vacant," etc.
Not having made your inquiry under the Public Inquiries Act, do you feel you have any authority to make a recommendation to the assembly?
Hon Mr Evans: No, I have not and I will not be making one.
Mr Chiarelli: Then what would be the general mandate that you as a commissioner would have under subsection 15(1) or (2) when you are asked for an opinion?
Hon Mr Evans: As to whether I would have an inquiry under the Public Inquiries Act or just an informal one?
Mr Chiarelli: What do you consider the general mandate of the reference? You will be filing a report. What will you be reporting back to the Legislature?
Hon Mr Evans: Factual findings and my opinion on those findings.
Mr Chiarelli: If I can go back to section 15, when a reference is made to you or to the commissioner for the time being, under subsections 15(1), (2) or (3), is it your practice or is there any regulation or procedure which indicates whether that request should be made available or is available to the public?
Hon Mr Evans: Under subsection 1 it goes back to the House; under 2 to the Legislative Assembly, then to the Speaker -- 1 and 2 go to the Speaker, and the other one goes to the clerk of the executive council.
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Mr Chiarelli: I am not talking about your report. I am saying that if you receive a request in writing from a member either under subsection 15(1) by resolution by the Legislature -- obviously that would be public -- or under subsection 15(3) where the executive council makes a report, is the request to you under subsections 15(1) or 15(3) available to the public?
Hon Mr Evans: I do not believe so.
Mr Chiarelli: You do not think so?
Hon Mr Evans: Not under subsection 15(3), but under subsection 15(1).
Mr Chiarelli: Under subsection 15(3), if the executive council made the request indicated in subsection 15(3), you do not think that would be made available to the public?
Hon Mr Evans: That goes to the clerk of the executive council and that is the end of it as far as I am concerned.
Mr Chiarelli: Is the request that has been made under subsection 15(1) available to the public at the present time?
Hon Mr Evans: Yes.
Mr Chiarelli: Thank you very much.
Mr Sorbara: Commissioner Evans, in my six years' experience in this place, having both sat in an executive council and watched the workings of an executive council in two parliaments, my own experience is that I have not seen an elected representative who has used his office to further his private interests. In virtually every single case, if not in absolutely every single case, the 260 MPPs who have made up the two parliaments are here to serve the public interests and set aside their private interests and take that approach to their work, notwithstanding the existence of the Members' Conflict of Interest Act or these new guidelines of the Premier.
You have been doing your job for about three and a half or four years. Is my experience similar to your experience?
Hon Mr Evans: I would agree. I take the position that everybody who came through that doorway into my office to file a report and go to confession was honest until I find anything different. I have not found anything different so far. I believe they really are trying to do their job in the interests of the public.
Mr Sorbara: My own view is that the presence of these new guidelines from the Premier is not going to make much of a difference in that regard, primarily because MPPs are basically honest people who are here not to make themselves personally richer or more influential in their communities in a private sense.
Hon Mr Evans: I believe that. If I may express an opinion, I think the guidelines were for public perception more than anything else.
Mr Sorbara: Yet here we have a news release of today where yet another MPP has resigned or been forced to resign. Here is the announcement from the Office of the Premier. Dr Bob Frankford has now resigned as parliamentary assistant to the Minister of Health because he did not sell his business interest in a health service organization. That is really regrettable because I think Bob Frankford is an honest MPP who could have continued to serve.
By the way, I want to say that I am very troubled with what the member for London South said earlier in questioning. He referred to section 15 of the guidelines as a broad exception from the requirement to divest. I want to say that the Premier cannot have it both ways. The Premier cannot have the opportunity to stand up and say these are the toughest guidelines that have ever been brought before any Parliament and then have the MPP for London South say there is a broad exception from the requirement to divest, and there is yet another secret memo that says, "Even there you don't have to divest."
Paul Wessenger reported to you and you reported to the House that he owned shares in -- I am going to give you a list -- BCE Inc, the Bank of Montreal, the Bank of Nova Scotia, Coca-Cola Beverages, Mackenzie Financial Corp, Laidlaw-G, Canadian Occidental Petroleum Ltd, Noran Energy Resources Ltd, TR Capital Units and something called Newmac. My question to the commissioner is, has Mr Wessenger reported that he has divested himself of these interests?
Hon Mr Evans: To me?
Mr Sorbara: Yes.
Hon Mr Evans: No.
Mr Sorbara: As far as you are concerned, Mr Wessenger still owns these shares in these public companies?
Hon Mr Evans: As far as I am aware.
Mr Sorbara: In other words, he reported that he owns these interests and he has not changed the declaration he made to you.
Hon Mr Evans: Yes.
Mr Sorbara: Is it your view that Mr Wessenger would be required to sell his shares in these companies under the conflict-of-interest guidelines that are the subject of this committee's hearings?
Hon Mr Evans: Unless he can prove there was hardship or something of that nature.
Mr Sorbara: As you read the guidelines they require the Premier to make a public statement if he has made an exemption, do they not?
Hon Mr Evans: That is what it requires.
Mr Sorbara: You have not been made aware of any public statement in that regard. You have not been made aware of any exemption or any exception?
Hon Mr Evans: No, I have not. I think it should not be required to notify me.
Mr Sorbara: No, I appreciate that. There is no requirement to notify you, but you have not been made aware, through a press release or through a private communication from the Premier's office, that these shares had been sold.
Hon Mr Evans: I have not seen it in the Sun, the Globe and Mail or the Star.
Mr Sorbara: Our problem is that we have not seen it either. The guidelines, as we read them, require that the shares be sold, or if there is an exception made in that regard by the Premier, that the Premier, in a timely fashion, make a public statement that there has been an exception made in the case of Mr Wessenger and the reasons an exception has been made. Is that how you read the guidelines?
Hon Mr Evans: That is how I read them.
Mr Sorbara: You would have expected either that the shares were sold or that the Premier reported to the public about an exception?
Hon Mr Evans: Right.
Mr Sorbara: It is possible that Mr Wessenger has sold these shares, is it not? You would not know. There is no requirement for him to advise you?
Hon Mr Evans: Right. If he had sold them, I expect that he would notify me of it as a substantial change in his assets. He is not required to, but I have asked all of those who came in to let me know if they have a substantial change.
Mr Sorbara: So you asked Mr Wessenger.
Hon Mr Evans: I asked everyone.
Mr Sorbara: You asked everyone to advise of substantial changes.
About 10 days ago the Premier undertook to the member for St George-St David, Mr Scott, who is here, that he would provide a statement setting out which ministers and which parliamentary assistants had divested assets and which assets they had divested. Included in that statement, if I understood the undertaking in question period correctly, is that he would set out which ministers had not had to divest anything. Have you seen that statement yet?
Hon Mr Evans: No.
Mr Sorbara: No statement of that sort has been delivered to your office.
Hon Mr Evans: Right.
Mr Sorbara: We have not seen it either. I am asking whether any members of the committee have seen that statement. Has there been a communication to you from the Premier's office to expect such a statement?
Some hon members: No, nothing.
Mr Sorbara: Okay. We are wondering where it is.
Mr Mills: I do not think he said by such-and-such a date.
Mr Sorbara: The member for Durham East says there was not any time set for it. I agree, but our understanding was that there was going to be a timely disclosure. Frankly, we regret that there is not a timely disclosure and we regret that the Premier has not agreed to come before the committee to discuss his commitment in that regard. Anyway, we look forward to it.
I just want to conclude by thanking Chief Justice Evans for coming to this committee again and for answering our questions. I want to reiterate that he has been a great help to me in ensuring that I separate my own private interests from my public responsibilities, and I think the same can be said of every member.
Just along the lines that the member for Quinte made reference to in his comments, I believe very strongly that every single member of this Legislature comes here to do an honest job on behalf of the public. I think it is guidelines such as the ones we are considering now that are as much the cause of the problem as the solution to the problem. When you put before the Legislature the unrealistic requirement to sell all you have to serve at the pleasure of one man, the Premier, then you create expectations among the people of the province that are unrealistic. When you do that, I think you fail in your public responsibility. That is to say, if my friend Mr Mills did own a small business, I think he could continue to serve in his responsibility without having to sell that business for the short period of time he is going to be here, for the short period we are all going to be here.
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Hon Mr Evans: I should give you an example which I think may be pertinent. If I own a shoe store and I become a cabinet minister, I am faced with divestiture or trusts, but I may have children who would like to carry on that particular business, because my term in office may be limited by an election or by a stroke or whatever it happens to be. It may be a very short period of time, and to force me to get rid of that business I think is very difficult and very unwise. If I were faced with that proposition to be either a cabinet minister or divest, I would quit; I would not remain cabinet minister.
Mr Sorbara: Because you could sell the business and the day after --
Hon Mr Evans: I do not want to sell it.
Mr Sorbara: But if you did sell the business, the day after, you could put your foot in your mouth, with one of your shoes on it, and you would be gone from cabinet. It is a very risky business. I think Peter Kormos knows that. I think Evelyn Gigantes, who resigned basically on a technicality, knows that. Had she sold, she might have regretted it afterwards.
Mr Carr: Section 22 of the Premier's guidelines, introduced on Wednesday the 12th, said, "The minister shall not communicate on behalf of a private party in any manner in which his or her position as a minister could reasonably be perceived as influencing a decision." In light of what the Solicitor General went through, what would your thoughts be on that? Knowing the facts, would that have broken these guidelines as you understand them?
Hon Mr Evans: I am not so sure that I know all the facts. "Could reasonably be perceived as influencing a decision" -- I do not think I am competent to express an opinion on that, because I really do not know all the facts.
Mr Carr: Of course, when you were a judge you had to interpret "reasonable" all the time, and you had witnesses coming before you. Is that the reason, or is it more a political decision?
Hon Mr Evans: No. I really do not know for sure what it is all about.
Mr Harnick: If we take a look at section 15 of the guidelines, just so there is no misconception here, as I understand it the rule is that ministers are required to divest. Then we have the section (a) and the section (b) and then, following section (b), the exception. Just so we are not labouring under any sort of misunderstanding, if these guidelines ultimately become law or the Premier sees fit to continue to use them as guidelines, the rule is that you must divest and that is the rule in every case, and then it is up to the person chosen to be in the cabinet to prove the exception.
Hon Mr Evans: He has to prove first, undue hardship; second, that retention is not inconsistent with the public interest; third, that he has given appropriate undertakings to avoid a conflict, and fourth, that there will be a disclosure.
Mr Harnick: The way Mr Winninger interpreted this appeared to be as a broad, easy exception available in every case. That is certainly the way I interpreted his words, but in fact in your judicial opinion that is not the case, if this section is to be interpreted the way it is written.
Hon Mr Evans: That depends upon what is an undue hardship. If the Premier, for example, thought everything was an undue hardship, then that is very simple: no divestiture would occur. The second part is that it is not inconsistent with the public interest. I do not think it is very easy.
Mr Harnick: There is certainly nothing automatic about the exception kicking in. I am not missing a reverse onus here or something of that nature.
Hon Mr Evans: No.
Mr Harnick: All right. The other thing I want to ask you about this section is where it says "except where the minister satisfies the Premier." It is quite clear that any exception is an exception adjudicated by the Premier.
Hon Mr Evans: Correct.
Mr Harnick: If these guidelines are to become law by being incorporated into the Members' Conflict of Interest Act, as the Premier has indicated he is considering, could that section realistically remain written as it is, or would that section have to change so that the Conflict of Interest Commissioner becomes the person who adjudicates?
Hon Mr Evans: He adjudicates it. I think it would be much more satisfactory, but I sure would not want to do it unless I had a description of what an undue hardship is and what was meant by "not inconsistent with the public interest," and what is an appropriate undertaking, unless they were going to give the commissioner very wide discretion.
Mr Harnick: In terms of looking at this public act in which the conflict commissioner makes the adjudications and investigates and performs the inquiries and provides the final reports, as you are doing tomorrow, would it be realistic to have a section in this act that would take that adjudicative and investigatory process away from the commissioner and put it solely in the hands of an elected member, albeit he is the Premier?
Hon Mr Evans: I think it would be a conflict in there. Quite frequently there could be a conflict between the commissioner and the Premier.
Mr Harnick: What would the public perception be, as far as you are concerned, if the act provides the opportunity for the conflict commissioner to do the investigating and to prepare the report, and you had one section that read as section 15 of the guidelines read, which would in this very crucial area take that out of the hands of the conflict commissioner and leave it in the hands of the Premier?
Hon Mr Evans: I think it would be very unfortunate.
Mr Fletcher: Right now PAs and cabinet ministers on the government side are living under these guidelines. If the Premier does not come out and say there is going to be undue hardship or give some reason, a person who cannot meet the guidelines would have to resign from his position. Is that correct?
Hon Mr Evans: That is the answer I would expect.
Mr Fletcher: As far as Mr Frankford is concerned, he was given a length of time to divest and --
Hon Mr Evans: I am quite aware of Mr Frankford because I did have some communication with the Premier's office on Mr Frankford because he was ill for a while, and then because of the peculiar setup he had with his practice and involvement with the government, it was extended to 30 April.
Mr Fletcher: So Mr Frankford was not really forced out of his PA --
Hon Mr Evans: I think he was just unable to comply with the conflict of interest act.
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Mr Fletcher: With his contract with the Ministry of Health. It is a long-term contract, I understand.
As far as the government paying to set up the trust is concerned, what gets me on that is that it looks like another perk that government people are getting if the government is paying to set up a trust. It is just a perception again.
Hon Mr Evans: You mean if a trust is set up and the government pays for it?
Mr Fletcher: Yes.
Hon Mr Evans: Yes, I guess it is. On the other hand, a minister may well be making a substantial contribution if he has to pay for it.
Mr Fletcher: I know. I am just looking at the perception part of it. The conflict itself is a perception and --
Hon Mr Evans: If you are talking about public perception, we will not worry about that. They always think everybody gets too many perks unless they are sharing in it.
Mr Fletcher: I have never sold a used car in my life and I do not intend to. Thank you for being here, Judge Evans.
Mr Winninger: Chief Justice, I was not able to be present the first time you testified and I do not know if this question came up, but it seems to me that when people like you are appointed to the bench, you probably have to consider conflict of interest and divest yourself of certain assets. Is there any truth to that?
Hon Mr Evans: I did not have any problem.
Mr Winninger: That is a cautious answer.
Hon Mr Evans: Unless I were to give them my children. Actually, I did not have to divest myself of anything. I had some assets -- not many, but I had some. I was not required to do that. All that happened if something came up before me and I felt I had a conflict of interest is that I would advise the council that I had a conflict of interest and I did not wish to sit on the case.
Mr Winninger: Would you have been able to maintain a partnership in a law firm, for example?
Hon Mr Evans: No. That was over with. The day I was appointed, they took my name right off the door. I thought my brother was a little eager, but when I came home it was gone. You have to divest yourself of that, yes.
Mr Winninger: Would you have been able to maintain a business, for example, a commercial enterprise, as a judge or justice?
Hon Mr Evans: I had owned an apartment building, a commercial building, and I subsequently sold it, but I was not required to divest myself of it, so there was not any problem.
Mr Winninger: I have noticed in cases that judges and justices are very prudent about withdrawing from cases where, for example, it might be a landlord-tenant dispute and the judge may have a son who has an income property, or a similar kind of situation where there is a potential conflict. I just thought that perhaps judges and justices who are recipients of the public trust would be very sensitive to conflicts in their own lives and that you might be able to draw an analogy to members of the Legislature, who are in the public eye and who are making decisions that potentially could be conflictual with their own interests, financial or otherwise.
Hon Mr Evans: For quite a long period of time, I was the executioner, if you like, the vice-chairman of the Canadian Judicial Council. We dealt with complaints against judges, and then we had also an ethics committee which I was on. We did not have too many problems with that. But if I held 50 shares of stock in Bell Canada and a case came up before me as a judge, I would not think I had to get off the case because I held 50 shares of Bell Canada.
Mr Winninger: Yet another justice -- I will not mention any names -- who held shares in the Canadian Imperial Bank of Commerce declined to hear a case where Canadian Imperial was a party in the litigation.
Hon Mr Evans: In a small town he may have felt that way. Of course I always felt too when I was chief that some of them put that up to avoid a tough case. Some guys could reach a long way to find a conflict if they did not want to handle a case; the same thing with lawyers.
Mr Winninger: So is it a matter of the magnitude of the interest that determines whether there is a conflict?
Hon Mr Evans: No. A judge cannot, from what I say, actively carry on a business; he has to get out of all these things. But I see no reason why he could not, if he was fortunate enough, have a commercial building or an apartment building -- a small one, though. I am not talking about one with 10 storeys or something like that, 12, 15, 20 apartments. When he was a lawyer, what was his business? He was a lawyer, not an operator of a apartment building.
Mr Winninger: Sure, but just to come back to the banking example, if a judge had an interest of, say, $500,000 in shares in CIBC, would that make a difference?
Hon Mr Evans: I would think so.
Mr Winninger: As opposed to if he had $5,000 in shares?
Hon Mr Evans: Yes, sure. Quite.
Mr Winninger: Where do you draw the line?
Hon Mr Evans: Would he have an influence on it?
Mr Winninger: Yes. Where do you draw the line?
Hon Mr Evans: Is he going to be seriously affected by the result of the decision? If you have 50 shares of a company that has five million shares, I do not think you are a very big force in it and nothing would filter down to you, no matter what the effect of the judgement was.
Mr Winninger: I think I follow your reasoning, but the concept of public perception has also been thrown about today. Aside from the fact that the judge may not have control over the company through his shareholdings but can be seen to be in conflict because he or she has some shares in a company and is adjudicating in a manner that may ultimately affect the ability of that company to carry on its operations profitably, is it not better to remove any potential for conflict of interest rather than to have to draw fine lines?
Hon Mr Evans: In an ideal world, yes. However, I have had many judges in the trial division who have said to me, "I have a few shares in this company and there is a case involved" -- in the Bank of Nova Scotia or something like that -- "what should I do?"
I said, "If you feel any problem with it, don't take it, but if you feel that with your 100 shares in there, it is not really a bother to you, tell the council that you have 100 shares in there and see what they have to say." I have never had one of them come back to me and say, "Well, we don't want you to sit on the case."
Mr Winninger: But these are lawyers who have to appear before you in the future.
Hon Mr Evans: Lawyers are not that sensitive; not the ones I know, anyway. You put the problem to them and all they have to do is say yes or no.
Mr Winninger: I am not sure how much time is left, but perhaps in all fairness I should give the floor to someone else.
The Chair: Mr Mills and Mrs Mathyssen also wish to pose questions.
Mr Mills: No, I never said anything.
The Chair: Oh, you were just complaining.
Mrs Mathyssen: In view of the fact that the government had no more questions, my motion was to adjourn.
Interjections.
The Chair: Fine. Mr Sorbara first then, please.
Mr Fletcher: On a point of order, Mr Chair: I think the motion was to adjourn.
The Chair: I am sorry, did you move the adjournment?
Mr Fletcher: There was an intention to move it.
The Chair: The clerk informs me that as there was an agreement to sit until 6, it would require unanimous agreement to adjourn earlier. Mr Sorbara.
Mr Sorbara: This is not motivated by malice or politics or anything. I just wanted to point out to Mr Winninger that his example of comparing the life of a judge with the life of a minister -- it is so very different. Once one is appointed as a federal judge, one occupies that role, does one not, until age 75, subject to removal for misconduct or other statutory reasons? In comparison, one sits as a minister in a government at the pleasure of one man, with all the risks inherent in being a minister in a modern democracy.
I do not mind if a judge maintains 100 shares in Bell Canada and continues to use the telephone or to hear cases involving an action against Bell Canada, and I think most judges eventually find themselves not involved in business. But I ask Chief Justice Evans whether he thinks the comparison is an appropriate one between the tenure that a judge has, federally appointed, and the tenure of a minister appointed by the Premier.
Hon Mr Evans: I think they are apples and oranges.
Mr Sorbara: I understand, and this is pure hearsay, that recently Michele Landsberg wrote a column calling into question your own impartiality in the role that you play. Did you read that column? I did not.
Hon Mr Evans: I did. A friend gave it to me. I read it.
Mr Sorbara: What is your view about your impartiality in these matters?
Hon Mr Evans: It is hard for me to assess my own impartiality, but I did have a little note sent to her. I wrote her a letter. I do not know what will happen to it.
Mr Sorbara: It reminds me of Gerry Caplan's column on Sunday last saying that there is now a grand conspiracy going on in the province to destabilize the first socialist government of Ontario.
Mr Mills: He never said --
Mr Sorbara: Well, no, but my God, if you read the column -- pretty soon he is going to require that only his column appear in the Sunday Star, for safety's sake. Awful, just awful.
Hon Mr Evans: I do not expect to be judged by columnists or newspaper writers; I expect to be judged by the Legislature. When they lose confidence in me, I expect I will be invited to go elsewhere.
Mr Sorbara: I think probably this committee has great deal of confidence in you, even though it is dominated by government members.
Mr Mills: Government has the utmost confidence in you.
Mr Sorbara: I think you should put that on the record.
Mr Harnick: Mr Mills just said that the government members here have the utmost confidence in His Lordship, and I hope that they listen to some of his recommendations when we get down to that part of the deliberations.
Interjections.
Mr Winninger: Is this a free-for-all?
The Chair: May I draw again to the committee's attention, although we only have 20 minutes left, Commissioner Evans is a soft-spoken person, and we do not tend to be, but it is helpful to be able to hear him.
Hon Mr Evans: Fine. I will try and speak up. I have a voice problem today.
Mr Harnick: My Lord, just following up on Mr Winninger's example, if we transpose that example to the political realm of the person owning the $500,000 of shares in CIBC, would there be any significant difference in that person carrying on in his role as a minister of the crown if that $500,000 interest were disclosed publicly?
Hon Mr Evans: He can keep it, he can carry on. but he cannot participate in anything having to do with the CIBC or any banking regulation or things of that kind, I would not think.
Mr Harnick: But as far as you are concerned, the act of disclosure is as effective as the act of divestiture.
Hon Mr Evans: In most instances, yes.
The Chair: Mr Mills, you seem to have some active commentary. I wondered if you had any questions.
Mr Mills: I am just conferring with my colleague about a point in law, he being the lawyer and me being the patient.
Mr Harnick: Gord, remember, you get what you pay for.
Mrs Mathyssen: I was just wondering, though, by virtue of the fact that the Treasurer, for example, creates a budget that would and could affect a bank and could affect that $500,000 investment, is there not a problem that that Treasurer knows that his or her colleague could be adversely affected by a budget that the Treasurer feels is necessary in reference to some circumstance?
Hon Mr Evans: I think you have to say to yourself, "How many shareholders are there of CIBC?" I think you would look at how many people are going to be affected. Is a whole group of people going to be affected? If so, it is not a conflict. I can only say if a guy had $500,000 in shares, he would not be in the Legislature.
Mr Mills: That is for sure.
Hon Mr Evans: Really, to answer your question, I do not think it would affect it in any event, because under the act you are exempt. There is no conflict if it affects everybody, or a large section of the public, and I am sure that CIBC shareholders are widespread.
Mr Mills: Can we move now to adjourn?
The Chair: With unanimous consent.
Mr Sorbara: You want unanimous consent? You got it.
The Chair: We are adjourned until 6 May at 3:30.
The committee adjourned at 1743.