Tuesday 22 July 1997

Report, Integrity Commissioner

Honourable Charles Harnick, Attorney General


Chair / Président: Mr Joseph N. Tascona (Simcoe Centre / -Centre PC)

Vice-Chair / Vice-Président: Mr Gary Fox (Prince Edward-Lennox-South Hastings /

Prince Edward-Lennox-Hastings-Sud PC)

Mr John R. Baird (Nepean PC)

Mr TonyClement (Brampton South / -Sud PC)

Mr AlvinCurling (Scarborough North / -Nord L)

Mr GaryFox (Prince Edward-Lennox-South Hastings /

Prince Edward-Lennox-Hastings-Sud PC)

Mr ErnieHardeman (Oxford PC)

Mr RonJohnson (Brantford PC)

Mrs MargaretMarland (Mississauga South / -Sud PC)

Mr Allan K. McLean (Simcoe East / -Est PC)

Mr Gilles E. Morin (Carleton East / -Est L)

Mrs SandraPupatello (Windsor-Sandwich L)

Mr TonySilipo (Dovercourt ND)

Mr Joseph N. Tascona (Simcoe Centre / -Centre PC)

Mr DavidTilson (Dufferin-Peel PC)

Mr BudWildman (Algoma ND)

Substitutions present /Membres remplaçants présents:

Mr JimBrown (Scarborough West / -Ouest PC)

Mr PeterKormos (Welland-Thorold ND)

Clerk / Greffier: Mr Peter Sibenik

Staff / Personnel: Mr Andrew McNaught, research officer, Legislative Research Service

The committee met at 1009 in room 151.


Consideration of the June 25, 1997, report of the Integrity Commissioner.

The Chair (Mr Joseph Tascona): We'll start the committee process now. I'd like to welcome everybody here, particularly the Attorney General, who is attending here today.

For the record, I'd like to note that there are two letters that have been received by the clerk of the committee. There's a letter dated July 17, 1997, from the Integrity Commissioner. I believe all members of the committee have that. The second letter that's been received is actually two letters: a July 16, 1997, letter to the Integrity Commissioner from Tony Silipo, MPP, Dovercourt, and a response to Mr Silipo's letter dated July 17 from the Integrity Commissioner. Those three letters will be exhibits and form part of the committee hearings. I take it all the committee members have these documents?

Mrs Margaret Marland (Mississauga South): Yes, we do.

The Chair: Does the Attorney General have a copy of these documents?

Hon Charles Harnick (Attorney General, minister responsible for native affairs): I do.


The Chair: On that note, we adjourned last date so we could hear from the Attorney General. I welcome the Attorney General here. The process is that the Attorney General will speak for 15 minutes, and the two parties here, the third party and the government, will have an opportunity for 15 minutes each to discuss matters with the Attorney General.

On that note, I'm prepared to proceed unless any committee members have a point they want to make. No? On that basis, Mr Attorney General.

Hon Mr Harnick: I'm accompanied by Dennis Brown from the ministry, if that's permissible.

Thank you for the opportunity to be here today. I have some prepared remarks that I'd like to proceed with, and then I'll take questions.

The recent report of the Honourable Gregory T. Evans, the Integrity Commissioner, concerning a communication by the Minister of Municipal Affairs and Housing to the Health Services Restructuring Commission has brought renewed emphasis and public attention to the Members' Integrity Act. As you know, this is a very important piece of legislation. To maintain public confidence in our democratic institutions, the conduct of members of the House must bear the closest scrutiny. Accordingly, I would like to take this opportunity to address some of the issues that this legislation and Commissioner Evans's report raise.

Concern that public officials may be placed in situations of conflict of interest has a lengthy tradition in Ontario. For instance, the convention that members not vote on any matter in which they have a pecuniary interest has long been observed. This follows a practice that originated in the British House of Commons. Prohibitions against obtaining improper benefits first appeared in the Legislative Assembly Act over 130 years ago.

The first attempt to provide written, definitive conflict-of-interest guidelines was made under Premier Davis in 1972. These guidelines regulated the conduct of cabinet ministers by directing them to abstain from business and professional activities, to divest themselves of interests in public companies and to make public disclosure of private assets. These rules were applied also to family members of ministers.

In 1978 further guidelines were enacted to regulate communications between ministers and key officials in the justice system.

In 1985 these guidelines were extended to parliamentary assistants and confidential staff. A further change made at this time was to permit interests in private companies to be placed in blind trusts.

Conflict-of-interest controversies continued to arise, and former Lieutenant Governor John Aird was asked to make recommendations for new rules. Reviews of the Aird report culminated in the passage of legislation, the Members' Conflict of Interest Act, proclaimed in force on September 1, 1988. One of the initiatives of the new legislation was the creation of an independent adviser on conflicts of interest as an officer of the Legislature. The first commissioner under the act was the current Integrity Commissioner, the Honourable Gregory T. Evans.

Over time, it became apparent that there were elements of the Members' Conflict of Interest Act that needed re-examination. The standing committee on administration of justice considered this issue, and its September 1991 report on conflict-of-interest guidelines contained recommendations for amendments.

The Members' Conflict of Interest Act was reviewed in detail by the Honourable Gregory Evans, who was then Conflict of Interest Commissioner, and by representatives of all three parties. I had the pleasure of being the parliamentarian who took part in this review on behalf of our party. With the significant assistance of the commissioner, Bill 209, An Act to revise the Members' Conflict of Interest Act, was introduced in the House in December 1994. The new act, the Members' Integrity Act, 1994, received third reading on December 9, 1994, and was proclaimed on October 6, 1995.

Generally speaking, the new act provides a fuller and more detailed set of conflict-of-interest rules. In some cases, it authorizes a more flexible approach to resolving conflicts. I note that in introducing the new act in the Legislature, the Chair of Management Board at the time observed that it contained obligations previously found only in the conflict-of-interest guidelines established by the then Premier. Accordingly, separate guidelines would no longer be necessary. For instance, the new act prohibits cabinet ministers from acquiring real estate other than for personal use. This rule was incorporated from the former Premier's guidelines and was not contained in the Members' Conflict of Interest Act.

There are a number of other differences between the current law and the previous statute. You will note that, unlike the former act, the new statute begins with a preamble that sets out the underlying principles of the legislation. This statement of principle is worth repeating, since one of its purposes is to guide in the interpretation of the provisions of the legislation.

"1. The assembly as a whole can represent the people of Ontario most effectively if its members have experience and knowledge in relation to many aspects of life in Ontario and if they can continue to be active in their own communities, whether in business, in the practice of a profession or otherwise.

"2. Members' duty to represent their constituents includes broadly representing their constituents' interests in the assembly and to the government of Ontario.

"3. Members are expected to perform their duties of office and arrange their private affairs in a manner that promotes public confidence in the integrity of each member, maintains the assembly's dignity and justifies the respect in which society holds the assembly and its members.

"4. Members are expected to act with integrity and impartiality that will bear the closest scrutiny."

Some of the differences between the two statutes include the following:

The definition of "conflict of interest" in section 2 has been tightened. Formerly, a conflict occurred where a member makes a decision at the same time that he or she "knows that in the making of the decision there is an opportunity to further his or her private interest." Now the definition of conflict includes two changes: A conflict arises where the member not only knows of an opportunity but where the member "reasonably should know" of an opportunity. Also, a conflict arises not only where there is an opportunity to further the member's own private interest but where there is an opportunity "improperly to further another person's private interest." Following this approach, the provisions regarding insider information and seeking to influence also apply to actions that further not only the member's private interest but another person's private interest.

The current act, unlike its predecessor, expressly imports parliamentary convention into the types of activities that members may engage in on behalf of constituents. Now members may engage in such activities if they are "in accordance with Ontario parliamentary convention." I will be saying more about parliamentary convention shortly.

Finally, the new legislation expands the scope of the private disclosure statement that members of the assembly are required to file with the Integrity Commissioner. The scope of the public disclosure statement that the commissioner prepares on the basis of information provided by the member was also increased. Moreover, pursuant to subsection 21(5), information in a member's private disclosure statement may be withheld from the public disclosure statement if the commissioner is of the opinion that the information is not relevant to the purpose of the act and that a departure from the general principle of public disclosure is justified. A noteworthy change in the new act is that members are now required to file statements of material change in certain circumstances.

As you all know, the current legislation, like previous conflict-of-interest regimes, imposes special requirements on some members of the assembly. I would like to say a few words about this.

First, members of the executive council are in a special position in government. Unlike other members, they are part of the executive branch of government and are thus involved in a wider range of decision-making and important matters of public law and policy. Thus it is appropriate that there be special restrictions that apply only to them.

For instance, as I have already mentioned, cabinet ministers are very limited in the types of activities they can engage in. Specifically, they cannot engage in employment or the practice of a profession. Nor, unless the commissioner's approval is obtained pursuant to section 13, can they engage in the management of a business carried on by a corporation or hold an office or directorship, unless it is as part of their official duties or is in a social club, religious organization or political party.


Also, without the commissioner's approval ministers cannot carry on business through a partnership or sole proprietorship, although they can place this type of business in a blind trust. Ministers are also prohibited from holding and trading in securities and similar types of property unless they are entrusted to a blind trust or the commissioner approves. In addition, the acquisition of land by ministers is restricted, and there are special rules regarding contracts applicable to the executive council and its members.

The fact that there is a distinction between members and ministers is illustrated by the fact that section 6 specifically preserves the rights of members who are not ministers to engage in certain listed activities, including engaging in employment and the practice of a profession.

Second, I would like to note that the Members' Integrity Act does not have any provisions that expressly apply to parliamentary assistants. Indeed, section 19 specifically provides that the special rules in sections 10 to 18 for current and former members of the executive council do not apply to them.

Finally, there are a number of provisions in the Members' Integrity Act that apply to everyone: cabinet ministers, parliamentary assistants and members of the assembly. Former Attorney General Ian Scott stated in the course of a discussion of the earlier legislation why rules should apply to both ministers and members of the assembly. He stated that non-ministers "...will have the same private interests, or private interests of character and dimension. Indeed, because they will be entitled under our bill to carry on businesses, it may be that they will have more private interests.

"They will be faced with the same public duty from time to time. Perhaps it will not be an obligation imposed on them in precisely the same way, but to vote on a bill, to participate in committee in moving or voting on an amendment...will put an individual member in a position of conflict of interest. This bill is designed to recognize that reality by applying the principle to all of us who come here anxious to discharge our public duty."

The following are the main provisions that apply to all members of the assembly: (1) the basic conflict-of-interest rule; (2) the insider information provision; (3) the provision regarding seeking to influence; (4) the provision that permits activities on behalf of constituents in accordance with parliamentary convention; (5) the rules governing the receipt of gifts, government contracts and the procedure on conflicts of interest. All members of the assembly are also subject to disclosure rules.

It would be appropriate to draw to your attention that these provisions, while they apply to everyone, may not necessarily apply to members, parliamentary assistants and ministers in the same way. Individuals in different positions have different responsibilities that, depending on the circumstances, might trigger a different application of the provisions.

This would be the appropriate time to make some observations concerning the issue of parliamentary convention and its role under the Members' Integrity Act. You may have observed already that the term "parliamentary convention" was not used in the predecessor legislation, the Members' Conflict of Interest Act. Indeed, the title of the new legislation was chosen to reflect that the act deals with more than issues of conflict of interest in the economic sense but includes matters of parliamentary convention.

A "convention" was defined in Hood Phillips's Constitutional and Administrative Law, sixth edition, as "rules of political practice which are regarded as binding by those whom they concern...but which would not be enforced by the courts if the matter came before them." However, where these rules have been imported into the Members' Integrity Act, they are part of the legislation and hence are statutory rules of conduct.

What constitutes the rules of parliamentary convention is not listed in the act and, unlike the common law, cannot necessarily be found in the decisions of judges. In the report under discussion, the commissioner quotes constitutional expert Eugene A. Forsey, in collaboration with G.C. Eglington, on the meaning of "convention." He defines conventions as "extralegal rules of structure or procedure or principle established by precedent, consolidated by usage and generally observed by all concerned." This is the authors' description of how conventions come into existence:

"Conventional principles are generalizations from a mass of usages flowing down from incident to incident. These incidents in the light of common sense are usually termed precedents which over a period of time reflect common usage and are consolidated ultimately into conventions.

"A precedent may be followed on another occasion because the actions composing the precedent are seen with hindsight to be correct, that is, to have constituted a commonsense solution to a particular problem in conformity with the best general constitutional principles.

"If the reasons for regarding those actions as correct are still applicable in a like political situation, they are likely to be followed. Once a new practice is followed, a precedent is established which will constitute a usage and in due time a convention. Conventions and usages are not cast in stone...."

The intersection of parliamentary convention and the Members' Integrity Act is illustrated by Commissioner Evans's recent report concerning communications by a minister to an administrative body. As you know, the commissioner addressed the issue of whether a letter from a minister to the Health Services Restructuring Commission was in breach of Ontario parliamentary convention and hence in contravention of the act. Commissioner Evans observed that the commission was "intended to operate at arm's length from government and without political interference."

He concluded that writing the letter to the commission was a breach of parliamentary convention " that the HSRC was set up as an independent quasi-judicial tribunal to operate at arm's length from government. The meaning of `arm's length' in the present context is `without interference by members of the political party responsible for the enactment of the legislation creating the HSRC.' It is an accepted convention that there are limitations on the ability of a minister to act on behalf of constituents as far as quasi-judicial tribunals are concerned."

This conclusion emphasizes how important it is for members to understand the Ontario parliamentary conventions that govern our behaviour. More specifically, it also requires us to address the types of administrative bodies to which the convention applies. As you know, I have been asked by the Premier to meet with Commissioner Evans to clarify this very issue. I expect to meet with him in the near future. However, a few brief comments on this issue may be useful now.

The functions of public bodies may be roughly classified as legislative, administrative, judicial, quasi-judicial and ministerial. Some of these functions are carried out directly by government while others are performed at arm's length. Arm's-length bodies are established by legislation to carry out functions independently of government. Independence is the ability to make decisions free from external pressures and without fear of personal consequences, including reprisals.

The meanings attributed by the courts to the term "quasi-judicial" for administrative law purposes have been sometimes inconsistent. The term may be used in several contexts and its meaning may vary somewhat according to context.

The authors Jones and Villars discuss the development of the concept of quasi-judicial power in their legal textbook Principles of Administrative Law. They state:

"The phrase `quasi-judicial' refers to discretionary powers which are essentially judicial in nature, but which are exercised by officials other than judges in their courtrooms. Historically, quasi-judicial powers have been subject to procedures which more or less resemble the formal ones used in litigation. As one moves farther away from the judicial paradigm, it becomes difficult to determine when the discretionary power can more properly be described as `merely administrative' or `ministerial'....

"The concept of a quasi-judicial power takes its point of reference from the type of function exercised by a judge in litigation between two parties. The formal procedures which have been developed over the centuries by the courts epitomize `natural justice' in its strongest form.... Many of these procedures have been made applicable to quasi-judicial functions exercised by officials who are not judges, although the exact content of the procedural requirements may differ with the type of quasi-judicial power involved."

The authors continue:

"Over the years, the superior courts have been asked to review the procedures used by other officials in the exercise of powers delegated to them by legislation. The more closely those powers resembled ones exercised by judges in their courtrooms, the more likely it was that the superior courts would require some form of curial [or courtlike] procedure to be used by the officials in the exercise of their powers; hence the development of the phrase `quasi-judicial powers.' On the one hand, the content of the procedural requirements for exercising such non-curial powers differed enormously with the type and content of the power involved. The less the non-curial power resembled something done by a court, the less stringent was the requirement that courtlike procedures be used to exercise that power. On the other hand, the concept of a quasi-judicial power is not infinitely elastic, and at some point it becomes impossible to characterize a particular non-curial power as being quasi-judicial instead of merely administrative.... Although it was previously thought that no procedural safeguards were required for the exercise of merely administrative powers, administrative law has now developed the `duty to be fair' in the method used to exercise even a merely administrative power."


The features that characterize a quasi-judicial body or function are somewhat fluid and there is no closed list. However, at root a quasi-judicial body is established by legislation and exercises powers given to the body by legislation. Typically, it has the power to determine or seriously affect rights and obligations and therefore it must act fairly. Commonly, such bodies exercise powers that result in conclusive decisions and are not merely advisory, investigatory or conciliatory in character. At common law, quasi-judicial bodies are required to make decisions only on the basis of the evidence before them.

In Ontario, the Statutory Powers Procedure Act sets out minimum rules of procedural fairness that apply to a proceeding by a tribunal in the exercise of a statutory power of decision. These rulings apply to proceedings that the tribunal is required to hold to give the parties an opportunity for a hearing before the tribunal makes a decision.

You can see that the definition of "quasi-judicial" is somewhat vague. Clearly, a tribunal such as the Ontario Municipal Board is quasi-judicial, but sometimes it can be quite difficult to determine whether a particular administrative body is quasi-judicial in character. For instance, some regulatory bodies such as the Ontario Securities Commission can exercise administrative, quasi-judicial and even legislative powers, thereby combining quasi-judicial functions with other roles.

Quasi-judicial bodies are a type of arm's-length body. This raises a point about how parliamentary convention applies generally to arm's-length bodies that, while agencies of the provincial government, were established to carry out their functions independently of the government.

It should be noted that some of the wording of the commissioner's report raises an issue about whether the principle of non-interference might also apply to other arm's-length bodies that are provincial government agencies. It is apparent that some significant issues arise in the application of the Members' Integrity Act, particularly as regards the duties and restrictions of members under Ontario parliamentary convention. These are important issues, and I am confident that we will all benefit from the discussion of them by this committee. Thank you very much.

The Chair: Thanks very much, Attorney General. Do you have an extra copy of those or do you want to share those with us?

Hon Mr Harnick: We have a copy, and I gather copies can be made and distributed. We have no problem with that.

The Chair: Thanks very much. At this point in time, Mr Silipo from the third party.

Mr Tony Silipo (Dovercourt): Minister, thank you for your presentation. I found it actually very helpful in terms of its going through and giving us both some of the background for the current legislation as well as your analysis, particularly in the latter part of your comments, in focusing on the question of "quasi-judicial." I want to start with that. First of all, just in terms of the process, you said you have yet to meet with the commissioner, I gather.

Hon Mr Harnick: No. I have spoken with the commissioner at some length. He has been unavailable and I will be meeting with him very shortly.

Mr Silipo: You made the comment that the definition, in your view, of "quasi-judicial" is vague. What would you like to see come out of your discussions with the commissioner in terms of a clarification of that? My sense would be that on the basis of the decision that we have from the commissioner, he probably would not say that this question is vague; that in fact it's quite clear in his mind that when there is a body that has such broad decisions as the hospital restructuring commission has, powers given to it, as I'm sure I don't need to tell you, by the cabinet, then it is quite clear that the nature of its decisions are quasi-judicial. So where is the confusion in your mind?

Hon Mr Harnick: If you take a look, certainly the studies that I have done in the preparation of the paper I have delivered this morning indicate how elastic the definition of "quasi-judicial function" is. I think the important aspect of what you ask is to see whether we can provide some kind of ability to assist members of the Legislature in looking at the functions of administrative tribunals to try and characterize what they do.

I think what's important in the commissioner's report is that he certainly alludes, and maybe more than alludes, to the fact that we have to be careful in terms of how we approach other bodies that are exercising functions that may not be quasi-judicial but still demand an element of independence. I think the area is very difficult to analyse. We've had writers writing texts on administrative law and attempting to categorize the function of tribunals and providing definitions that are constantly changing, and it is not an easy task, particularly for members who have to make the analysis.

Mr Silipo: So would you see that one of the things that might come out of your discussions with the commissioner would be a delineation on his part from the existing bodies that we have in Ontario, which in fact would be categorized in his view as quasi-judicial bodies and therefore would fall under the same kind of prohibitions with respect to what ministers can and can't do in terms of their contact with those bodies? Is that one of the things you think might come out of this?

Hon Mr Harnick: That might be something that can come out of it, and I think even more so, what are bodies that aren't quasi-judicial bodies that we have to be aware of, that have to entertain an independent function? I don't know that it's so simple that you can immediately make these definitions, but I think that's something that might come out of it in the discussions and deliberations we had over the period of time when we wrote the new integrity act, in which I was privileged to be involved. We had lengthy discussions about these issues and how definitive you could be. It's very difficult.

Mr Silipo: Before I get on to talking about parliamentary conventions, I want to say I appreciated your comments with respect to that. But certainly, just coming back to this issue, in the present circumstance we clearly have examples of obviously, on the one hand, Minister Leach writing to the hospital restructuring commission and thereby breaching the Members' Integrity Act; we have examples of the opposite happening with other ministers, in particular the documentation indicates the Minister of Agriculture, Food and Rural Affairs, Mr Villeneuve, refusing to write to the commission on the basis that this is a body that is at arm's length from government and therefore a body with whom it would not be proper for him to communicate. Clearly, among your colleagues there was at least some understanding by some members about the inappropriateness of writing to this body. Where does the confusion come from?


Hon Mr Harnick: I don't think this is confusion that arose just in this situation. I remember during the last Parliament Premier Rae wrote to the Ontario Municipal Board in response to requests that had been made to him by constituents of his. He wrote to them to discuss a purely procedural matter, very much on all fours with the facts of this particular case. The then Attorney General, Mr Hampton, your leader, made it quite clear that he didn't believe this was any kind of a conflict of interest at all.

It's important to note that these are not new issues. When we wrote the integrity act, we tried to do it in a way that was going to provide as much guidance as possible for members of the Legislature and we knew there were areas that you could only go so far in clarifications on. I think this is one of them. I think we have to take another look at it. Certainly, I want to speak to the Integrity Commissioner, who probably has more experience in this area than any one of us, to see if there's any way we can provide that kind of guidance.

Mr Silipo: I think that would be useful, whatever we may agree or disagree on with respect to the instance at hand.

As I said earlier, I appreciated your comments with respect to parliamentary convention. First of all, starting from your point that this is something that has been added to the legislation which wasn't there, I don't know what you make of the letter we have from Commissioner Evans. I think it is quite unusual for a commissioner to take the action of writing in response to comments made by one of the government members here, Mr Gilchrist, in which he clarifies that parliamentary conventions, while they may not be contained in any handbook, "are not `land mines or grenades' as suggested by Mr Gilchrist. They are recognized rules of constitutional and political behaviour resulting from a mass of usages flowing from incident to incident established by precedent and common sense." It seems to me that's similar to the comments you made.

It seems to me that it goes to the point that what we have here is a piece of legislation that, as you said, is broader than the former piece of legislation. It doesn't just deal with the narrow issue, as important as it is, of conflict of interest, but does deal with conduct that is appropriate or not appropriate. As you said yourself, the rules, as a result of that parliamentary convention, apply differently to ministers, parliamentary assistants and MPPs. I just wanted to underscore that. I don't know if you have any further comments you want to make on that.

Hon Mr Harnick: One of the difficulties we all have as parliamentarians is set out in the paragraph you just quoted. I'm certainly not going to take issue with the Integrity Commissioner's characterization that conventions are not land mines or grenades. I'm not going to take issue with that at all, but what he goes on to say is, "They are recognized rules of constitutional and political behaviour...." The difficulty is that what we are talking about are potentially rules that have developed over many, many years, and the challenge for us as legislators is to be able to recognize these rules.

One of the parallels I can draw -- and you're a lawyer yourself -- is that when you take a look at the area of civil law, we don't expect the public to recognize all the rules of the common law as they go about regulating and organizing perhaps their business lives or personal lives, yet people breach the common law and other people sue them. They go into lawyers' offices, and lawyers often have to look up the law to see what in fact the common law in any instance is. But it's not something that is always obvious to the individual, and I don't think legislators are really in any different position.

I think we all wrestle with the fact that we don't know exactly what all of the parliamentary conventions are that govern us. As you know, part of the battle is, when you don't know all of the parliamentary conventions, you hope you're going to recognize the issues that will tell us to go out and look for those conventions. Sometimes the issues don't jump out at you either, and it makes it very difficult to determine what is and is not a parliamentary convention, what you should and should not know.

Mr Silipo: I don't want to argue with you, Attorney General, but I can't resist making the comment that, just as the notion that ignorance of the law is no excuse applies to the general public, so it obviously applies to us as parliamentarians. Again, here in this case, there were certainly some of your colleagues who understood that it was inappropriate for them to do the very thing that Minister Leach did.

One last area that I want to just get your comments on is this question of what flows from all of this. It's my judgement that part of the reason the commissioner, when it came to deciding what penalty he should apply, made the recommendation he did is because in effect I think this is the first instance where he has found someone to have breached the Members' Integrity Act primarily under the auspices of parliamentary convention, that area. I think it's perhaps a way of him setting out for all of us his understanding and his interpretation of the act and of the rules.

Within that, as you know, there has been some difference of opinion about what the question of penalty means. As you know, we had requested that the commissioner appear in front of this committee specifically to deal with that issue, to sort it out for us so that we would hear directly from him rather than me giving my interpretation and members of the Conservative caucus giving their interpretation. Members of the Liberal caucus aren't here to give any interpretation, so we can dispense with that.

The point is that really the only opinion any of us, and all of us, would accept is the opinion of the commissioner. Of course, as you may know, your colleagues in the Conservative caucus chose not to have the commissioner here, so I was left with the only alternative, to write to him and ask him to clarify that issue. I hope you have a copy of the correspondence in response to my question; that is, that it's my understanding that the range of penalties which the commissioner "may recommend under section 34...apply to the member as a member of the assembly and not as a member of cabinet." In other words, in any circumstances where the commissioner finds "the actions of a member to warrant the application of a penalty," he does not have "the power to recommend that the member resign or be removed from cabinet. Consequently the question of continued membership in the cabinet remains a political issue to be addressed primarily by the particular minister and Premier and not by the commissioner."

I put that to him. I asked him, "Is my interpretation of the act correct?"

He writes back and says: "Your interpretation of the act is correct.

"Whether a member of the executive council remains in cabinet is not a matter for my office." The next point, I think, is really important: "It would not be correct to draw any inference that my recommendation `that no penalty be imposed' has any relationship to a member's status as a member of the executive council."

Do you, as the Attorney General, have any quarrels with that conclusion?


Hon Mr Harnick: Certainly I'm not here to in any way challenge the reasons for decision of the Integrity Commissioner. I think like any other decision that a judge or a commissioner or a decision-maker makes, it's clear on the face of that decision what the decision-maker was trying to do. I think, quite frankly, that the essence of what comes out of this decision is the ability to take a look at the reasons and, if possible, to provide a level of clarification on areas that members obviously find very difficult in terms of the guidance they get from the Members' Integrity Act. The act was written to provide clarification and as much clarity for members as we could possibly develop. Obviously this points up that there are difficulties in terms of the guidance that that act provides to individual members of the Legislature.

Mr Silipo: I may not even disagree with you on that point.

Hon Mr Harnick: I think what's important is to see if we can provide that clarification. The issue here is certainly not, at least for me, the interpretation of the commissioner's report.

Mr Silipo: No. I agree with you. We're not here to interpret the commissioner's report.

The Chair: Mr Silipo, our time is --

Mr Silipo: Let me just conclude then. I want to be very clear that on the question of penalty the commissioner has been very clear that his recommendation that no penalty be imposed has no relation to, in this case, Minister Leach's status as a member of the executive council, but that is a separate issue to be dealt with by Minister Leach and/or the Premier. I'll just leave it at that.

The Chair: At this time the government members, and we'll start off with Mrs Marland.

Mrs Marland: Attorney General, one of the questions I wanted to deal with actually has been pretty well addressed. I wanted to try to get your response on what does qualify as a quasi-judicial body. I think in your own comments to us you were laying out very clearly that none of this is a simple matter as it pertains to administrative bodies versus everything else. I think I have enough information now to discuss that further.

Since the question of penalty has been raised, just speaking as a backbencher, I find it really interesting that we have an act, whether it was the original conflict of interest act or the present Members' Integrity Act, that I personally support in terms of the necessity for us to be protected and also for the public to be protected, because I see it serving both those purposes.

The irony is that we have an example in our term of office, yours and mine, where -- I don't know whether at the time he was called the Integrity Commissioner or the Conflict of Interest Commissioner, but in any case it was found of a member of this House that, to use the commissioner's wording, and I'm going to eliminate the member's name, "to continue to tolerate this member's disregard of this legislation is tantamount to a breach of the commissioner's duty as the Conflict of Interest Commissioner." So it was the Conflict of Interest Commissioner. The recommendation was that this member be reprimanded for failure to comply with section 12 of the act. The interesting thing is that, despite that recommendation, that member was never reprimanded.

We had a previous act, the conflict of interest act, which is the example I've just given you, where a penalty was recommended and no action was taken. Now we have a decision where it's very clear that no penalty was recommended. When you discuss with the current Integrity Commissioner any possible amendments to the act, how will you address this question of, when his or her recommendations as commissioner are not acted upon, what next?

Hon Mr Harnick: I think "What next?" is what this committee is really doing. The integrity act says that a response to the Integrity Commissioner's decision has to be made within 30 days and in this instance it was a decision of the Legislature to refer the matter to this committee to provide that response. I think that is something that didn't exist under the conflict of interest act, but certainly it's something I can have some discussion with the Integrity Commissioner about.

Mrs Marland: You see it as our responsibility as a committee to make recommendations in responding to this current report of the commissioner. Do you see it as our responsibility or our opportunity to make recommendations that might result in amendments to the act?

Hon Mr Harnick: I certainly think the committee has to make a decision about those kinds of things and I think that would be within your scope.

Mr Tony Clement (Brampton South): I certainly agree with my colleague Mrs Marland that perhaps one of the long-term goals of this committee very well would be to have a broader discussion about those very issues without the time constraints we are operating under today.

First of all, Attorney General, I want to thank you for your presentation. I also found it very lucid in terms of some of the issues. I did, however, want to go back to "quasi-judicial" just for a second because you laid out, I think very well, how there is a scope of definition for quasi-judicial which is somewhere between purely administrative and the more courtlike curial functions that we find in typical court situations.

One of the things that you expressed in terms of the definitions of quasi-judicial was that there was some element of natural justice. I wanted to draw that out a little bit for the record to show some of the elements typically associated with quasi-judicial and the definition of natural justice. Could you elucidate just a little bit on that?

Hon Mr Harnick: Certainly the obvious things are: Is there a commissioner or a panel making decisions? Are they making decisions on the basis of evidence that they've heard or are they fact-finders who are going to make a decision based on submissions people make and investigations they do that are beyond just what people tell them? Are there opportunities in a courtlike process to examine and cross-examine individuals? Those are the kinds of indicia that make it very obvious that a tribunal would have a quasi-judicial function.

I think you get into an area that is much less obvious when you take a look at boards that are making decisions that have an effect or an impact on individuals, for instance, but that don't have all of those other functions. You start to say: "Is this a quasi-judicial function? Is it an administrative function? Are there instances where a board might be exercising an administrative function but it would still be unwise to communicate with them?"

Remember, one of the four principles of the integrity act that I outlined involves ensuring that members who are elected are able to look after their constituents, so that you have that as one of the cornerstones of the integrity act. It's often not obvious where to draw the line and it becomes particularly so with the minister. The development of the integrity act and the role I played in that was to take an act we thought had an awful lot to do with being more punishment oriented and provide an act that was of assistance to members, something that members could rely on, something that they could understand, something that provided succinct definitions of what a conflict is.

Every one of these issues has to be reviewed in terms of, has there been a breach of the section that defines a conflict of interest? Certainly the conflict commissioner's categorization of what Mr Leach did as not being done in anything but the best of faith and looking after his constituents I think is indicative of the fact that there was no finding of a breach of the definition of conflict of interest.


Mr Clement: Again, I'm interpreting rather than putting words in the commissioner's mouth, but the fact that he decided against a reprimand and in favour of no sanction or no penalty could well be because he was breaking new ground here. This was, as you say, the first case where he was applying what could be called a parliamentary convention rather than a set law.

As Mr Silipo says, obviously ignorance of the law is no excuse in our system, but conventions are kind of funny things, and you went into this a little bit, because they are not written down anywhere. You can't go to the book of parliamentary conventions, which are based on precedent. It's only when these sorts of decisions occur -- it's very similar to the constitutional reference back in 1981 where all of a sudden there was a constitutional convention that was recognized by the Supreme Court. Here we have a parliamentary convention that is recognized by the Integrity Commissioner, and that is part of his role, but sometimes it is not exactly clear when an off-the-wall, one-off case becomes a precedent. I'd like your comment on that as well.

Hon Mr Harnick: My feeling is that we can't be expected as legislators to know what might be hundreds of years' worth of parliamentary conventions that have been adopted in this jurisdiction from, for instance, the United Kingdom, from other Commonwealth parliaments. I think the next step is to say, "We hope we will recognize that there is an issue here that should prompt us to say, `Maybe I'd better make some inquiries about something.'"

Oftentimes, you don't recognize even the issue and it's an area that's very difficult. It adds a dimension to the integrity act that wasn't part of the original conflict of interest act. I think our ability to convey to members of the Legislature that there is parliamentary convention in certain areas is something I very much want to discuss with the Integrity Commissioner.

How do we recognize these issues? How do we know there's a convention? How do we even recognize an issue that should lead us to that conclusion? Because we at the same time have a duty, our fundamental duty as elected representatives, which is to represent our constituents, and sometimes those principles clash. How do we deal with them and how do we recognize that we may be stepping in an area where we shouldn't be stepping? Certainly what we tried to do in developing the integrity act was to provide clarity where we could because we wanted to create an act that was going to be not a landmine for members but something that was going to help members in their day-to-day functions in representing their constituents.

Mr Gary Fox (Prince Edward-Lennox-South Hastings): To me the question is, why are the ministers subject to such a strict degree of restriction when they too have to represent their constituents? The issue here today is not really Mr Leach as much as it is the integrity act.

Hon Mr Harnick: In my remarks one of the differences I pointed out was that it's the nature of the things ministers have to decide on, that it's the knowledge they carry as to decisions being made in government, that mean they necessarily have other rules. What we're really dealing with here is not questioning what the rules are; it's a question of how to understand them better, how to take some of these concepts that I can tell you legal writers have been trying to define for eons -- some of the principles of administrative law and what is a quasi-judicial function and what is an administrative function and what is a legislative or ministerial function -- and define those and provide some guidance for all members. That's the challenge we face.

To a very large degree, and I think it's very important to note this, the development of the integrity act was very much a result of committee work that was done and the fact that guidelines were referred to the committee, as well as the Members' Conflict of Interest Act. The committee, back in the early 1990s, took a look at all these areas and was very much at the forefront of leading to the development of a new act that included all these concepts and now our challenge is to make sure we recognize the issues that should lead us to be able to use the act in the most beneficial way for members.

The work the committee did in the past and the work that can potentially come out of this I think is very important to helping members better understand the integrity act when issues arise. That should alert us to the fact we might have an issue that we're dealing with of parliamentary convention or that might involve an administrative tribunal and an analysis of the function of that tribunal.

As I said, I'm not so sure, and I do want to talk to the Integrity Commissioner about this, that there are not other tribunals that have a different function than quasi-judicial that we have to be very careful about communicating with in certain instances. I think, quite frankly, that involves all members of the Legislature. When any member of the Legislature is contacting a board that has to make an independent decision, be it administrative, ministerial, quasi-judicial, we have to be very careful and we have to understand that analysis. If it's something the best legal writers have difficulty understanding and can't agree on, it tells you how difficult it is for us as members of the Legislature.


Mr John R. Baird (Nepean): Thank you very much for your presentation this morning. It certainly raised a good number of issues. Obviously the act deals with two things: first, trying to deal with situations where a member would be trying to advance a personal interest, and second, I suppose it's the other side of the coin, actions we would undertake as members trying to serve an Ombudsman type of role.

In terms of your meeting with Commissioner Evans, I would ask you first: What would you hope would come out of that specifically as to where we could go from here? When you look at the size and scope of government, as it's grown over the last 50 years and as has been said here this morning, parliamentary convention is not written down and it does evolve, but we now have an integrity act which is written down and is very clear and specific with its expectations.

There's a bit of a clash there and I guess each of us on all sides of the House, when we undertake Ombudsman-type roles, given that the scope of government has grown so large that those who deliver the services, those who deliver, regulate or undertake activities, whether they're certain pieces of legislation or certain programs, sometimes become remote from the people they're there to serve, from time to time has to step in and act as an Ombudsman when a constituent isn't getting the service they have every right to expect as taxpayers, whether it's that their phone calls aren't being returned or they've not being treated fairly or a whole host of things we deal with every day.

I think there has to be a degree of clarity there that's not there now so that we can each go about our activities on a daily basis with some faith that when we undertake them in good faith, we're undertaking the right course of action.

What would you hope specifically to come out of your meeting with Judge Evans?

Hon Mr Harnick: Certainly I'd like to explore the idea of how we can provide that clarity. Is there a way we can do it or is there something we can undertake that can better educate us to recognize the issues if we're not able to provide more clarification and definitions? That's something I want to explore with Justice Evans.

Your analysis of what the integrity act does was very well put in the sense that we have, on one side, issues that deal with a pure conflict of interest that we test against the definition in the act, but we also have on the other side some restrictions on what we can and can't do, even though we're doing these things in good faith. That certainly summed up the essence of the structure or the act very well.

The Chair: We've concluded our time with respect to the questioning of the Attorney General. Does the Attorney General want to have any concluding remarks?

Hon Mr Harnick: No.

The Chair: On that note, I'd like to thank you very much for attending this morning.

Mr Clement: On a procedural point, Mr Chair: I am wondering whether I can gain unanimous consent from the members who are present here today to amend the subcommittee report, given the non-participation of the Liberals. There is a phrase in paragraph 8 which indicates that you as the Chair are "authorized to report to the House on the day specified in the July 3, 1997, order of the House after members of the committee have signed off on the report."

I am wondering whether that last phrase has to be there, because we amended paragraph 8 to make it clear that the Chair would finalize the report, in a second line, "based on motions adopted by the committee." I would argue that phrase, "based on motions adopted by the committee," is in fact the direction to the Chair and to the subcommittee, rather than the phrase "after members of the committee have signed off on the report."

I would ask whether we could have unanimous consent to remove that last phrase.

The Chair: So you're looking to delete the last sentence of paragraph 8 of the subcommittee report?

Mr Clement: I would end the sentence: "The Chair is authorized to report to the House on the day specified in the July 3, 1997, order of the House."

The Chair: You're looking to delete the phrase, "after members of the committee have signed off on the report"?

Mr Clement: Correct, sir.

The Chair: Is there unanimous consent to make that change?

Mr Peter Kormos (Welland-Thorold): It's an interesting proposition, and Mr Clement asks for unanimous consent without having done any sucking up beforehand.

Mr Clement: I'll do it after if you want.

Mr Kormos: Yes, okay. You may not want to. I understand what you're saying and doing. What happens if neither Mr Silipo nor I want to sign off on the report, notwithstanding that we've been present for the meagre two days of discussion on it? Or does our mere presence and participating in a vote, let's say, on the report, whether we're supportive of it or opposed to it, constitute signing off? That doesn't necessarily mean a literal signing off. I understand it's a broadly interpreted sort of thing. It's using a sort of turn of phrase to achieve a particular goal.

Mr Clement: I think Mr Kormos is precisely right on his last comment, and I applaud him for the way in which he, with his keen mind --

Mr Kormos: Okay, there's the sucking up; okay, here we go.

Mr Clement: I would agree with him in that it's the participation in today's activity which is in fact how the committee participates in the final report, rather than whatever it means to sign off, and I would agree with Mr Kormos on that point, so we don't need this.

The Chair: Just a point of clarification: At tab 3, the order of the House was, "That the June 25, 1997, report of the Integrity Commissioner be referred to the standing committee of the Legislative Assembly, that the committee consider the report and respond directly to the Integrity Commissioner and that the committee be authorized to meet for two days before July 25, 1997, and that the committee present its report to the assembly on the first available day that reports by committees may be received."

Mr Kormos: In view of what Mr Clement just said, I'm not sure it's necessary to delete anything from the subcommittee report. If one's presence and participation constitutes signing off, one's absence -- without there being any doubt about the date and time and place of the meeting and the agenda and so on -- similarly means some sort of acquiescence to the report.

This is a trite thing at the end of the day, and this really doesn't mean a lot, but here we are tinkering with the subcommittee report that's been adopted, doing that in the absence of the Liberals -- and again in this instance I have no concern, but it seems to be a little bit of a dangerous precedent. You wouldn't like it being done to you, I'm sure, regardless of your reasons for not being here, whether your reasons were laudable or less than laudable.

Mr Clement: Yes, fair point.

Mr Kormos: I'm concerned about tinkering with the subcommittee report in the absence of the Liberals. I think the committee can understand that it's the view of the committee that this being a scheduled meeting and the agenda being an open one, absence from this -- if I weren't here at all today, surely you wouldn't say that inhibited or prohibited the Chair from presenting the report that was arrived at without my literally signing off, and if I choose not to be here, or I can't be here without a substitute, too bad, so sad.

Mr Clement: Just to finalize my comments then, that is a perfectly acceptable alternative variation on this so long as the Chair agrees that the non-presence of the Liberal Party can be deemed to be no impediment to our finalizing the report today in terms of participation as a committee. I'm perfectly willing to accept that.


The Chair: Is it an impediment to preparing or to presenting the report?

Mr Clement: I don't think it's an impediment to either. I think you have a duty to the House to report back. If this meeting ends in pandemonium, you still have a duty to report. The question is, "What is the content of the report?" and the answer to that is, "The content of the report is whatever we as a committee discuss today."

The Chair: We're talking about the subcommittee.

Mr Clement: Whatever the subcommittee finalizes is based on whatever we discuss today.

The Chair: That's correct.

Mr Silipo: I don't think we have a problem. I just want to be clear as well in echoing Mr Kormos's position. I don't think we need to get into a whole issue about the words in number 8. Unless you and/or the clerk tell us that we have a problem, I don't want to waste any more time dealing with what happens as a result of the fact that the Liberal caucus decided that rather than play by the rules, albeit they were determined by the Conservative majority, they wanted to take their marbles and go home rather than being here to do their job, or they saw that they were doing their job in a different way. That's fine, that's their decision. The rest of us are here.

My understanding is we've got an order from the House which includes coming to some conclusions or no conclusions and reporting back to the House, and that's what we need to do. In fact, the rules that we adopted through the subcommittee are really just a mechanism to allow us to do that. In my view, and I'm assuming that's what you meant when you read to us the order of the House, it can't supersede the order of the House.

The Chair: We have other members who want to speak to this. We're quite prepared to look at it and get back to you after lunch just to clarify.

Mrs Marland: If you're going to look at it and we are going to discuss it again, I'll hold my comments. Definitely there has to be a clarification about whether the subcommittee exists without its statutory quorum.

Mr Kormos: I agree we've got to speed this up. Viewers were riveted to their sets watching this Attorney General talk about integrity. We're now losing ratings fast.

The Chair: Because I'm participating? This is a motion by Mr Clement. It's on the floor. We're going to review it and we'll get back to you after the recess. At this point in time the next order on the agenda was to discuss the report.

Mr Clement: Mr Chair, do I take it then that the motion that I moved last week is on the floor?

The Chair: It's still on the floor and it can be dealt with at any time, of course. In the subcommittee report we have paragraph 7, which deals with motions to be moved. But it's your motion, whenever you want to deal with it. It can be dealt with now or it can be dealt with in the context of us proceeding and dealt with at 5 o'clock.

Mr Clement: It's the first motion on the floor; there might be others. I think Mr Silipo indicated last week that the NDP might have a couple of motions dealing with these issues. I think my motion is the bedrock of what this committee must accomplish today, which is to accept the report of the Integrity Commissioner.

We've now heard from both Minister Leach and the Attorney General about some broader issues which it might behoove this committee at some point in the future to concern itself with, but at the very least, in order to satisfy the requirements of the House to the best of our ability, from what I've heard, and I think I can speak for at least some of the members on this side, we accept the report of the Integrity Commissioner, we accept his findings, we accept his sanction of no penalty being imposed and we want that to be reported back to the House as the committee's report.

The Chair: Motion number 1 is on the floor. I think everyone has a copy. Is there any further discussion on this motion?

Mr Silipo: We're not doing the half-hour rounds in discussing this?

The Chair: I thought we had already done our two rounds.

Mr Silipo: That's fine, then.

The Chair: We adjourned last time, from my reading of the Hansard, until we could meet with the Attorney General.

Mr Silipo: We're now into debate and discussion based on the motion that's in front of us?

The Chair: That's correct. Did you want to say something, Tony?

Mr Silipo: Let me just say, if you look at the words that are here in the motion from Mr Clement, it's very difficult to be opposed to what is here. There may be some quibbling with respect to the latter part in terms of the recommendation that the Legislature adopt the report. I hear what Mr Clement is saying in terms of his wanting to indicate that the committee and the Legislature accept the report. That's fine. I don't have any particular problem with that. It might even be appropriate for us to indicate in some way that we take note of the report, and if this is the way to best do it, so be it.

What troubles me is that the motion as it is here does not address the fundamental question that I see, which is: So what? What happens? You heard me make the point this morning and you heard me make the point last week when we met that the issue, as I see it, is not just what the commissioner found. What the commissioner found, quite frankly, is not for us to dispute. What the commissioner found is really beyond the realm of our quibbling with it. We may want to probe it so we can understand it better; we may want to probe it also so we can learn from it; we may want to probe it so we can ensure that everyone is clear about what the rules are. But we're not probing it so we can debate whether we agree with it or not. The law says in this instance we have no choice but to accept the report.

The report deals with the question of, so what? Or, put more nicely, the question of penalty, only to some extent. Without belabouring the point, I need to underline again that the Conservative members on this committee have refused to have the commissioner be present and address very clearly that issue of penalty.

Had he been here, he would have been able to say, as he said in the letter he sent to me in response to my letter to him, that the question of penalty that he is authorized to address under the legislation, under the Members' Integrity Act, deals with four possible conclusions that he can come to, which range from no reprimand all the way to recommending that the member's seat be vacated, and a couple steps in between. But in each of those they deal with the member as a member of the Legislative Assembly. They do not nor cannot deal with the issue of the member as a cabinet minister.

The problem I have with Mr Clement's motion is that it doesn't address that latter issue. Quite frankly, if Mr Leach were not a minister, we wouldn't be sitting here. The reason he was found to be in breach was because as a cabinet minister he breached parliamentary convention. Yes, as an MPP he has certain responsibilities, but even as the Attorney General clearly said to us, as a cabinet minister he has additional responsibilities. Put another way, as a cabinet minister he has different limitations, some may argue more stringent limitations, on what he can do. Interestingly enough, the commissioner, in his letter to the committee, says in his view that isn't the case; in fact the minister has -- where does he say it? He says:

"Ministers are not subject to any restrictions which would prevent them from adequately dealing with their constituent problems with the provincial agencies, boards or commissions. Unlike government backbenchers and opposition members, who may appear personally before such bodies (unless prohibited by statute or convention), the process by which ministers may assist their constituents" -- this is important -- "is by communicating with the responsible minister who, if he or she considers the matter to be proper, will refer it to his or her deputy minister (or the person delegated by the minister to deal with such matters), for consideration and reply.

"In fact, constituents of ministers are in a more advantageous position than others if the proper procedure is followed."

The commissioner doesn't say that ministers can certainly circumvent the law by going to the appropriate minister. In this case Minister Leach could have gone to Minister Wilson. What he says is that's the proper route, because then the minister responsible for the agency, board or commission is in the best position to tell the minister making the request whether the request is appropriate or whether it's inappropriate for the minister to respond, which is, according to the commissioner, what the Minister of Health would have or should have said had Mr Leach approached him. We don't know if that happened, but it's beyond our scope to get into that in terms of what happened, because that's revisiting the situation.


The point is that the commissioner is clear in telling us here and in telling us in the report -- because I know that even when the Premier dealt with this issue, he chose only to quote about half a sentence out of the full sentence that the commissioner made on this. The Premier gives the impression that what the commissioner is saying is that it's okay for one minister to talk to another minister and thereby get around the process of going directly to the agency, board or commission. The commissioner isn't saying that. He's not saying that one minister should go to the other in order for you as a minister to circumvent the process. What he's saying is that's the proper channel so that the minister responsible for the agency, board or commission can then give some guidance to the minister-member making the request about what the proper procedure is.

In this case, again I want to underline according to the commissioner, the response that would or should have come from the Minister of Health, had Minister Leach approached him, would have been to say: "No, this is a quasi-judicial body. It's an independent body that you and I as members of the same cabinet have agreed to charge with a certain responsibility. We've transferred responsibility from the cabinet to this body and therefore you can't now meddle in the decision-making." That's really the issue here.

When it comes back to the question of therefore what is the appropriate consequence, it's clear that from the perspective of the commissioner, he has come to the conclusion, we can surmise, as to why he made the recommendation on penalty that he did. I have put forward the notion, and Mr Clement commented on it as well, that perhaps one of the reasons the commissioner has in this instance, within his powers -- I want to continue to underline that -- of applying the penalty, recommended no reprimand is that the basis for the breach was breaching parliamentary convention. It's new ground on a new piece of legislation and perhaps he didn't want to go any further than that. He wanted this to be, in effect, a serious warning, not just to Mr Leach but to the rest of us who are either in cabinet or perhaps aspire to be.

The point is that does not in and of itself finish with our responsibilities. That doesn't deal with what our responsibilities as legislators are. I want to remind members that our responsibility is not just to respond to the commissioner, but also to report back to the House. It is in effect for us to take note of what happened and, yes, deal with the commissioner's report. But I think it's also appropriate in doing that at the very least -- I would argue to go further and point out that on the issue of penalty there has got to be more that has to be done in this case, but at the very least to point out that on this question of penalty this muddling that the Premier has chosen to bring about needs to be sorted out.

We have heard very clearly now, albeit by correspondence because the government members chose not to hear it directly from the commissioner, that it would not be correct to draw any inference that the commissioner's recommendation that no penalty be imposed has any relationship to a member's status as a member of the executive council. In terms of any motion or any report that we make back to the House, I think it's incumbent upon us that we put that issue squarely in the report and squarely in the recommendations that go forward.

I don't have the exact words but after lunch I'll be bringing back some words that will in effect just add those to the motion Mr Clement has made. I hope they will be acceptable to the government members, because making a finding is really doing our job, as I think we have, albeit indirectly, albeit, as I say, through correspondence rather than having the commissioner here.

But I think it's important and crucial that that piece of information be there so we as a Legislative Assembly can then say that this is the range of issues in front of us: Yes, we've dealt with the commissioner's report, we adopt the report, we accept the report, we take note of what the commissioner has found, but there still is an issue beyond that report of this minister's particular conduct, not just in this instance but also because this is the third time he has been found wanting. That raises an issue for him and for the Premier, in my view, about his continued membership in cabinet. It's not an issue for me to decide, it's not an issue quite frankly for any of you to decide, but it is an issue for Mr Leach and Mr Harris to address.

At the very least, we saw when Mr Leach was here last week that he acknowledged, finally acknowledged, contrary to his position in the House and contrary to his public position, to my knowledge, until last week when he appeared before us -- he was saying before that the whole issue of penalty was wholly contained in the commissioner's report -- he finally acknowledged that in effect the question of his continued membership in cabinet has nothing whatsoever to do with the commissioner's report but is an issue for him and the Premier.

Mr Allan K. McLean (Simcoe East): On a point of privilege, Mr Chair: I would ask the member to indicate the wording that he would like added to the motion that is on the floor, the precise wording that you would like to see added to it, so that over lunch I would have an idea of what to consider.

Mr Silipo: I can tell the member opposite that what I will be doing is looking very much at the words that are in the letter from the commissioner, so if he wants to take a look at that letter -- I believe he has a copy of it -- he will see the words that I will bring forward as a motion to attach by amendment, if that's the appropriate way, to what Mr Clement has.

The Chair: That's the July 17 letter?

Mr Silipo: That's right. I think at the very least that's something that needs to be in the report.

The Chair: That's the response to your letter?

Mr Silipo: Yes. What I will be looking to add further to that are simply words that indicate that therefore Mr Leach's continued membership in the cabinet is an issue that he and the Premier must address.

The Chair: Mr McLean?

Mr McLean: Thank you.

The Chair: Mr McLean has indicated he's satisfied, Mr Silipo.

Mr Silipo: The last point that I just wanted to make on this was in fact on that issue, with respect to saying that Minister Leach at least seems to me to now have accepted that the commissioner's report does not relieve him of this additional issue of responsibility of determining whether he will continue to be in cabinet or not. We heard in fact as much from him. He may have even contemplated -- I don't know; I don't want to put words in his mouth -- the possibility of resigning. But I took from what he said to us that the Premier made it very clear to him that the Premier wasn't interested in looking at any resignations, I suspect because if he were looking for one here he would also have to deal with resignations from the two other ministers who also similarly breached the rules by writing to the same body, and that's Ms Cunningham and Mr Runciman.

But I think there still remains that very basic issue. At the very least Mr Leach has acknowledged that's an issue that's still there for him to deal with. I will want to hear from the Premier whether he now accepts the words of the commissioner that indicate very clearly that the question of penalty as it relates to Mr Leach's continued membership in cabinet is still very much an open issue for him to have to address as the Premier, and ultimately as the person responsible for who is in cabinet and who isn't in cabinet.

He can't hide any longer, as he has up until now, or has tried to up until now, behind the commissioner's report and say, "I accept the report and therefore I have to do nothing further because the commissioner has recommended that no penalty be imposed." The commissioner is making it very clear that by saying that no penalty be imposed, he is not at all dealing -- because he can't, not because he doesn't want to but because he can't under the law -- with the issue of Mr Leach's membership in cabinet. That is an issue to be addressed by the Premier and obviously by the minister himself.

That's very much something that I think as a bare minimum needs to be added to this motion. I hope my colleagues opposite will find that approach acceptable, because I think that if we don't do it, we will not have been doing our job sitting here for this day and a half, two days I guess by the time we finish this afternoon.


Mrs Marland: I would like to say in response to Mr Silipo that the matter that has been referred to this committee is very clearly defined. We may have members of this committee who have other concerns. I think we all have a concern -- and it has been expressed by both the opposition members and those of us as government members -- about something as important as the definition of a quasi-judicial body, the definition of which bodies in the ABCs -- the agencies, boards and commissions -- of government that any of us, whether we be in cabinet or out of cabinet, as backbenchers in the government or indeed in the official opposition or third parties in this Legislature, may legally, under the Members' Integrity Act, advocate to for our constituents.

That matter I've just outlined is very important for all of us no matter where we sit in the chamber, but that matter has not been referred to us. When I asked the Attorney General this morning if he saw the matter of a definition as something that we could recommend as a committee to be part of the discussion between the Attorney General and the Integrity Commissioner in their future discussions, he suggested that yes, it might be. In thinking about it afterwards, I thought yes, it might be, but not at this particular hearing, not at this particular committee session.

The Legislative Assembly committee does have a very important mandate all the time to deal with matters of concern to members of the Legislative Assembly. But the matter before this committee today and on the previous day -- remember that we were only given two days to consider that matter -- is solely the report of the Integrity Commissioner dealing with one issue. It's very clear to me, when you look at the referral to this committee being to consider the report and respond directly to the Integrity Commissioner, we have to consider the report. It doesn't suggest that we consider the report and then look for things that are extraneous to the report and may, from any individual member's point of view, be very important as an outcome of that report. We can only consider what is in the report.

I find it really interesting when we talk about whether or not the Integrity Commissioner indeed had another meaning when he wrote his decision, "I recommend that no penalty be imposed," because when Mr Silipo wrote in his July 16 letter to the Integrity Commissioner to ask for the clarification, I don't think he probably could have anticipated any other reply than that which he received, because the Integrity Commissioner is bound by the act. I would ask you to turn to page 38 of the act and read section 6, because section 6 starts to lay out definitions. I suppose they're definitions of findings of the commissioner and where the commissioner has certain findings where a penalty can be imposed. It's not up in the air that the Integrity Commissioner can make this finding and impose that penalty; it's very narrowly scoped what penalty the commissioner can find in regard to what conclusion he makes.

If you read down page 38 in those sections, you'll find that under other findings he still can only recommend that no penalty be imposed. That's set out in the act; that's not in the head of the commissioner. So if you're asking whether the commissioner could have made any other finding, then I simply don't follow your argument. In item 6 he in fact is saying, "If the commissioner determines" --

Mr Silipo: Come on, even Al Leach has accepted it, Margaret; surely you can if he can.

Mrs Marland: Did I interrupt you?

Mr Silipo: I'm sorry.

Mr Kormos: I saw the looks you were giving him.

Mrs Marland: You were using some literary licence when you were saying a few minutes ago, Mr Silipo, what Mr Leach has in fact said.

Mr Silipo: I'll quote from Hansard this afternoon.

Mrs Marland: Yes, please do. Mr Leach said he has accepted that he made an error. That's what he said.

Mr Silipo: He said a few other things.

Mrs Marland: He said, "I accept that I made an error." The Integrity Commissioner has --


The Chair: Can we just have some order. Mr Silipo, you had your chance, and you'll have your chance this afternoon if you have an amendment to the motion.

Mrs Marland: The Integrity Commissioner also found that he had made an error. He found very clearly under section 6 of the act "that a contravention occurred that was trivial or committed through inadvertence or an error of judgement made in good faith." That's what he found: "an error of judgement made in good faith." In fact, he added another sentence: " error in judgement, based on his limited experience in government...."

Mr Kormos: He didn't want to say "stupidity."

Mrs Marland: I'm not sure that the public gallery present is allowed to interpret comments made by members of this committee.

Mr Kormos: On a point of order, Chair: The public can hear our laughing. That is, as we all know, a physiological response. It's as much out of our control --

The Chair: That's not a point of order, Mr Kormos. Mrs Marland has a right to present her position. If the member will listen to it, we can get ahead.

Mrs Marland: In Commissioner Evans's final decision he says:

"I am of the further opinion that such action was an error in judgement, based on his limited experience in government, but made in good faith in the mistaken belief that he was entitled to do so.

"Accordingly, I recommend that no penalty be imposed."

This committee's mandate is to review that report. That's his finding. We are also bound, I would suggest, by the wording in the act itself. I will read where in the act for the benefit of those people who are not familiar with the act, so they can understand where in the act Mr Justice Gregory Evans's conclusion comes from, because in item 6 it says, "...or an error of judgement made in good faith, the commissioner shall so state in the report and shall recommend that no penalty be imposed."

It can't be any clearer. The language doesn't say, "may so state," or, "may recommend;" the language says "shall." Once the commissioner finds that "an error of judgement made in good faith" has been made, he then "shall so state in the report," which I respectfully suggest he has done, "and shall recommend that no penalty be imposed."

There's no latitude here. There's no other interpretation under the act. There's no other interpretation that we as members of this committee can make about what the responsibility is that we have here today on this committee. That's why the motion moved by Mr Clement, in my opinion, is the only motion we can make. We have considered in its entirety the report made by the commissioner as it was referred to this committee, and in my respectful opinion I would suggest that to go any further or to make any further amendment to the motion that's on the floor is something that's totally out of order within the parameters of the matter that was referred to us.

If at a further meeting of this committee any time in the future one wishes to bring up other matters pertaining to those other issues, then that's for the committee, because the committee orders its own business. So we can discuss other matters in the future, but we can't expand this committee today to cover those areas that were not referred to us, quite simply.

Mr Kormos: What's interesting is that new matters have arisen since last week; in particular, one letter that was a response to Mr Silipo's inquiry of the commissioner and yet another letter, an unsolicited one, that was offered up by the commissioner as a result of him having reviewed -- I almost said "him reviewing," but that would have been bad English because it would be "he reviewing" -- the transcript. The commissioner took it upon himself to correct Mr Leach and indeed the member for -- well, Mr Gilchrist. I don't know his riding; all I know is that his election made a whole lot of Canadian Tire employees very happy. Think of Mr Gilchrist as your store manager.

The Chair: Mr Kormos, he's not here today.

Mr Kormos: I know he's not here. I wish he was, because I wanted to read and I will read on to the record the letter from the commissioner. He not only corrects Mr Leach and Mr Gilchrist in this comment that Mr Leach made about how if cabinet ministers aren't allowed to do what he did, there'll be two levels of representation in the province and especially all the more so after the next government is elected because there will be fewer members, 40% will be members of the executive council. Judge Evans corrects it.

Then he goes on and corrects Mr Gilchrist, who made reference to that in his arguments. Then he goes on to chastise, it seems to me -- that's my word; he doesn't say "chastise" -- Mr Gilchrist for Mr Gilchrist's criticism of parliamentary conventions. Mr Gilchrist talked about them as "land mines or grenades," as if they're tricks lingering there so that people can stumble over them.

The members of the government caucus on this committee got caught with their trousers at their ankles, and it's not an attractive sight. They're the ones who persisted in maintaining that Judge Evans's comment that no penalty be imposed was Mike Harris's justification for not dealing with the issue of whether or not Mr Leach should remain in cabinet. From day one they relied on that. Mr Clement last week suggested that there was a mere difference of opinion based on his acknowledgement of differing interpretation by him and government members of "no penalty be imposed" and the interpretation of the opposition.

No wonder the government didn't want the commissioner to come here, because I suppose it's a little less embarrassing to receive this letter than to have the commissioner here saying: "What are you guys talking about? It has nothing to do with" --

The Chair: Mr Kormos, we are at recess time, so I'm going to recess to 2 o'clock.

The committee recessed from 1155 to 1405.

The Chair: The committee is in session. I'd just ask Mr Kormos if I could make the ruling. We were asked by Mr Clement in the morning session for unanimous consent to deal with a part of paragraph 8 of the subcommittee report. What he wanted was the deletion of the words "after members of the committee have signed off on the report." In the ensuing discussion, various members made submissions on the meaning of these words and I'd like to thank them for their submissions.

In my view, these words have to be read in light of the July 3, 1997, order of the House under which this committee is operating. That order reads as follows:

"That the June 25, 1997, report of the Integrity Commissioner be referred to the standing committee on the Legislative Assembly, that the committee consider the report and respond directly to the Integrity Commissioner and that the committee be authorized to meet for two days before July 25, 1997, and that the committee present its report to the assembly on the first available day that reports by committees may be received."

The order I have just read is paramount in the event that some interpretative conflict arises between it and the subcommittee report. There is no conflict right now, but the committee should know that committee members will be afforded an opportunity to sign off on the report, that signing off on the report does not necessarily mean that the member agrees with the content of the report, and (3) that the sign-off mechanism is not a "procedural" condition precedent that can prevent the report from being presented to the House pursuant to the July 3, 1997, order of the House.

That's my ruling. Would the member who proposed unanimous consent wish to proceed or do you wish to withdraw it?

Mr Clement: With that clarification I'll withdraw.

The Chair: On that basis we'll return to Mr Kormos, who had the floor before we broke.

Mr Kormos: If I may, I want to speak further to the matter. However, Mr Silipo has an amendment to move and I would be prepared to yield the floor to him subject to my regaining it after he's moved the amendment and spoken to it, if he wishes, because it would be useful then for me to speak to all these things at one time instead of having to speak to the motion and then having to speak again to the amendment, which could use up a whole lot of time.

The Chair: We'd require unanimous consent for that. Is there unanimous consent for Mr Kormos's request?

Mr Silipo: It's a reasonable approach.

The Chair: Mr Silipo, are you in agreement with that?

Mr Silipo: Yes, absolutely.

The Chair: Does everyone have a piece of paper from Mr Silipo with respect to his motion? Mr Silipo.

Mr Silipo: It's actually a two-part amendment, and I leave it in your hands as to whether you wish to deal with these as two separate amendments or as one.

The Chair: We should deal with them separately.

Mr Silipo: The first, then, would be that Mr Clement's motion be amended by inserting after paragraph 3 -- and by paragraph 3, I'm talking about the paragraph that reads, "The commissioner further found that the action was made in good faith in the mistaken belief that he was entitled to do so. He recommended that no penalty be imposed." Right after that paragraph I would move that we insert the following paragraph:

"The commissioner has since clarified that:

"`Whether a member of the executive council remains in cabinet is not a matter for my office. It would not be correct to draw any inference that my recommendation `that no penalty be imposed' has any relationship to a member's status as a member of the executive council.'"

The second amendment, then, would be to amend Mr Clement's motion by adding after paragraph 6, that is, at the end of his motion, the following:

"The committee also recommends that Minister Al Leach and Premier Mike Harris take note of the commissioner's clarification with respect to Minister Leach's continued membership in cabinet and respond."

The Chair: For clarification, that second motion is at the end of this report, because they're going to be renumbered based on the motions.

Mr Silipo: Yes. The second one would be at the very end of Mr Clement's motion and the first one would be halfway through that after the third paragraph. The reason I suggest that the first one be up there -- I'm quite happy if you want to put both at the end -- is because it seemed to me to follow more logically given that the previous paragraph, paragraph 3, talks about what the commissioner recommended with respect to penalty.

Mrs Marland: On a point of clarification, Mr Chair: Do you want this worded exactly as it is without saying "respond to" whom? When I read this the question is, respond to whom?

Mr Silipo: I'd certainly be open to any suggestions. I initially thought "respond to the Legislative Assembly," but I left it open because I think there are a number of ways in which the Premier and the minister could respond, certainly I think it would be appropriate, to the Legislative Assembly, but to the public in general in any number of ways. If you want to add the words "to the Legislative Assembly," I certainly would be happy with that.

The Chair: Is that an amendment to the amendment?

Mrs Marland: Are you asking me?

The Chair: You asked for a point of clarification.

Mrs Marland: No, I was asking Mr Silipo to clarify whether that's exactly as he wanted it.

The Chair: You're not looking to amend it at this point.

Mrs Marland: I'm not looking to amend it. I just wondered even if grammatically it was correct.

The Chair: Okay, but you have your clarification?

Mrs Marland: Thank you. I have my clarification.

The Chair: Okay. Sorry. Go ahead.

Mr Silipo: I'll be able to speak to this later. I'd be happy just to yield the floor back to Mr Kormos.

The Chair: Okay. So at this point we are going to deal with each motion separately. That's what I indicated, so we're going to deal with the first motion to amend.

Mr Kormos: Quite right, but when I'm speaking of these I'm keeping in mind the fact that there's another amendment and that there's a main motion.

The Chair: Try to allot your time accordingly.

Mr Kormos: Let me tell you: One of the reasons why it's important that the first amendment go where it's indicated is because the person who drafted the motion -- Mr Clement presented it -- used the phrase, "He recommended that no penalty be imposed." That's all designed to reinforce that now shattered theory -- well, it is. The government from day one was trying to talk up the fact that the commissioner himself said that Mr Leach shouldn't be thrown out of cabinet; he said that no penalty should be imposed, and Mr Leach insisted in the House day after day after day, as did the Premier, that that's what Judge Evans meant, and the statement here, "He recommended that no penalty be imposed," is designed to convey that impression.

Mr Clement, you said as much last week. You spoke on behalf of your caucus and somebody gave them the marching orders to delete Judge Evans, the commissioner, from the list of witnesses. I've got a feeling you knew then that you might be wrong, and I'm being generous when I put it that way. I suspect you knew then that you might be wrong, and here you are; you've been exposed -- not so much you. I take no quarrel with your being here putting forward that line, because your career is on the incline and I understand that and I look forward -- well, no, I do.

You're a lot brighter than some of the other members of cabinet currently, a whole lot brighter. I have no quarrel with the proposition that you will not end up before the Legislature or before a committee saying, "How was I supposed to know that was a breach of my ministerial responsibility?"

This has been Mr Leach's new tack: "These rules are just oh so confusing, nobody could begin to understand them in a million years. By God, we're mere mortals." You're not on the local library board any more, where you're a volunteer and where you can be forgiven some lack of understanding of, let's say, the minutiae of the rules.

Mr Leach is in the big time. He's making the big bucks. I find it pretty absurd for him to come to this committee or for him to state anywhere else, "I didn't know I wasn't supposed to write to him." There are a few observations -- you ask somebody. The ministries are full of high-priced help, all of whom are there, in most instances, to try to keep their minister, her or him, from the land mines and from the bogs. You ask.

What I found interesting was that Mr Leach said, when asked by me last week, did he make any inquiries, did he ask anybody for advice about this, "Well, it's irrelevant whether I did or not." That leads one to one of several conclusions: Maybe he didn't ask anybody, in which case he's really stupid for having ventured where angels fear to tread; or he did ask somebody and either followed or ignored that advice. If he ignored the advice, which if he ignored it would have been, "Don't write even as an MPP because it violates the integrity act," then he's still stupid. If the advice that he got was, "No problem as long as you use your MPP letterhead," look, at that point I'm far more generous to --

The Chair: Mr Kormos, just out of parliamentary privilege and decorum, do you want to not get personal with respect to your comments and try to be a little bit more considerate?

Mr Kormos: I'm speaking of the conduct, not of the person; of the actions.

The Chair: I don't think you are.

Mr Kormos: I want to clarify that.

The Chair: Why don't you just be a little bit more generous.

Mr Kormos: Look, what would you call a person of high position -- and Mr Leach knew there were some sensitivities, because he was careful to explain to us here that he chose to do it on his MPP letterhead, so he knew there was something going on there, and also that it was merely a procedural issue. What he wanted to do was get a letter out to the restructuring committee so he could show his constituents -- so he could send ccs of it to 600 constituents who had made inquiries and requested an extension of the time.

As I suggested last week, he probably knew the recipient of that letter dismissed it, saying: "Oh, here's just another -- Al Leach, cabinet minister. We've got a job to do. He's irrelevant." We talked about that last week. His motive was to get a letter out so he could distribute it to 600 constituents. He knew there was something delicate here, he knew there was something sensitive, because he specifically didn't use cabinet ministry letterhead. Let's cut the baloney here. When you're a cabinet minister, you use that letterhead as often as you can.

Mr Baird: I wouldn't know.

Mr Kormos: You may have a chance. You use it as often as you can. It's embossed, it's a little bit heavier paper and it has, in the mind of most people, a little bit more weight. He didn't use it and he clearly spoke in his letter only to the matter of prolonging the time frame for submissions. He addressed his mind to it. He was thinking about the sensitivity of it.

As I said, he either didn't ask for advice, and people can characterize from their own point of view what kind of person that would make him, or he asked for advice and ignored it, and once again people can in their own minds formulate an opinion about what kind of person that is. We're talking about somebody here who's a mickey short of 40 ounces. People can form in their own minds an opinion as to what type of person would do that. Or he took advice and got bad advice. That's what I think a lawyer like Mr Clement or any other number of lawyers might call due diligence, and that seems to me to be a perfectly valid explanation and far superior to one that says, "How am I supposed to understand the rules?"

There are books. Reference has been made to Forsey's writings, available in the library -- I checked; Rod Lewis's book, the former Clerk's, published I think around 1987-88. You're not familiar with that one, Chair? It's remarkable.

The Chair: I'm just listening, Mr Kormos.

Mr Kormos: Chair, I saw the quizzical look on your face. Get it out of the library: Roderick Lewis QC.

The Chair: I've been quizzical before but not with books.


Mr Kormos: A 30- or 40-year Clerk of the House just prior to the present Clerk, his father was a Clerk who preceded him, and if any MPP has been elected here for the first time and not read the Lewis book, then they're negligent, quite frankly, because that's the primer for MPPs and it's readily available.

There are all sorts of people around here who are prepared to be generous with advice. Sometimes the advice is worth just about as much as you pay for it, but by and large there are people here with a great deal of skill. In a minister's office there are highly skilled, highly paid people -- they're called deputy ministers and assistant deputy ministers -- who are accessible to a minister and available.

There is also the commissioner himself, who has been extremely generous and never, so far as I'm aware, denied anybody an opinion as to whether something violates the act, and that's not the final word, because he's not forbidding you to do it. You can then do it at your own risk.

As I said last week, it's like the little boy who wet the bed. In the morning he dummies up. He doesn't know where that came from. Right? Al Leach comes here to the committee like that kid: "I didn't know there was a rule against it." Other people knew. Noble Villeneuve knew that it was a violation of the standard. It seems that Jim Wilson knew, the Minister of Health, because he said as much prior to Mr Leach writing his letter. Mr Leach cries about, "Oh, cabinet ministers then can't do" -- just in the same way that Speakers can't do all the things that an MPP can. They can't engage in debate in the House and undoubtedly have to fight the accusation from their opponents in the next election that, "You've been less effective than you could have been," yet there is no shortage of people who want to become Speaker.

Let's put on the record first of all about the "no penalty," because the government members have been using, indeed abusing, that comment from Judge Evans in his commissioner's report from day one. It would be nice to hear them, fess up, even a cursory acknowledgement: "Okay, we were wrong on that one. It didn't have anything to do with whether Leach should be kept in cabinet."

July 17, 1997, Judge Evans writes to Mr Silipo:

"I am in receipt of your faxed letter dated July 16th with respect to section 34 of the Members' Integrity Act, 1994, and wish to advise that your interpretation of the act is correct.

"Whether a member of the executive council remains in cabinet is not a matter for my office. It would not be correct to draw any inference that my recommendation `that no penalty be imposed' has any relationship to a member's status as a member of the executive council.

"Yours truly,

"Gregory T. Evans."

So it is not correct, members of the Tory caucus, to suggest that Judge Evans's recommendation that no penalty be imposed was any comment whatsoever on whether this conduct would or should jeopardize Mr Leach's status as a cabinet member. You were incorrect when you said so last week; Premier Harris was incorrect when he said so in the House; Al Leach was incorrect when he said so both in response to questions during question period and in the course of any number of interviews during scrums by the press. You were wrong. There's nothing wrong with that. You had your best kick at the can and you knew that it was going to come out sooner or later. You got caught. So be it.

The other, more interesting correspondence that flowed from last week's meeting is the letter from Judge Evans, and I'm going to be really careful, because I don't want him a week from now writing a letter about me and things I have said. It's a proactive letter. He's not responding to any correspondence that has been written to him.

Mr McLean: Is it confidential?

Mr Kormos: No. It's dated July 17, 1997. It's addressed to the clerk of the committee. It says:

"Dear Mr Sibenik:

"I feel compelled to correct a factual error which the Honourable Allan Leach" -- let me just interject here. I mean, here's poor Judge Evans saying, "Oh, here we go again." How many times is he going to have to review Mr Leach's conduct? I suppose that depends on what the Premier does over this summer break.

"I feel compelled to correct a factual error which the Honourable Allan Leach made in his presentation before the standing committee of the Legislative Assembly on July 15th (Hansard, page 545) and which Mr Gilchrist adopted in his presentation (Hansard, page 559). Mr Leach stated that `...roughly 40% of the population will have one level of advocacy from their member and 60% will have another.'

"The present 28 parliamentary assistants are not members of the executive council, which is presently comprised of 20 members, and they are not subject to the special provisions as set out in the act applicable to ministers. In addition, and for further clarification, section 19 states: Sections 10 to 18 do not apply to parliamentary assistants or to former parliamentary assistants, as the case may be.'

"These are sections which apply to members of the executive council only.

"Ministers are not subject to any restrictions that would prevent them from adequately dealing with their constituent problems with the provincial agencies, boards or commissions. Unlike government backbenchers and opposition members, who may appear personally before such bodies (unless prohibited by statute or convention), the process by which ministers may assist their constituents is by communicating with the responsible minister who, if he or she considers the matter to be proper, will refer it to his or her deputy minister (or the person delegated by the minister to deal with such matters), for consideration and reply.

"In fact, constituents of ministers are in a more advantageous position than others if the proper procedure is followed.

"All agencies, boards and commissions fall within the jurisdiction of a particular minister. For Minister A to deal with an agency, board or commission which falls within the jurisdiction of Minister B without consulting Minister B is an affront to Minister B; a violation of his territorial jurisdiction; and contrary to accepted parliamentary convention.

"A minister is restricted in the type of inquiries which may be made of the agency, board or commission under his or jurisdiction, ie, inquiries as to the status of a particular matter, policies of the agency and whether the proper procedures of the agency were followed in dealing with the matter. A fortiori a request from a cabinet colleague must face the same criterion.

"Parliamentary conventions are not contained in any handbook, but they are not `land mines or grenades' as suggested by Mr Gilchrist. They are recognized rules of constitutional and political behaviour resulting from a mass of usages flowing from incident to incident established by precedent and common sense.

"I trust that the above information will be of assistance to the committee and appreciate the distribution of this letter to the members of the committee.

"Yours very truly,

"Gregory T. Evans."

I wanted those to appear in the Hansard transcript of this hearing.

We saw this incredible transformation of Mr Leach from being protected by Judge Evans -- "After all, Judge Evans said I shouldn't be penalized; he said so himself, which means that my status in the cabinet cannot be questioned" -- to, "How was I supposed to know I was breaking the rules? The rules are so bizarre."

When you go into cabinet, you go to special lengths to make sure you know what the special rules are. Once again, there are all sorts of resources, and there are but a handful of cabinet ministers I'm aware of who wouldn't be capable of absorbing that information; most of them are.

You notice that Judge Evans refers with some particularity to Mr Leach's business background. Commissioner Evans characterizes it as a "system based on power and control...authoritarian." He's talking about Mr Leach's role with the Toronto Transit Commission here in Toronto. He makes reference to the fact that Mr Leach held several important and high-profile positions in the field of public transportation and is well respected in the business community. I've got no quarrel with that.


Mr Leach wants to play ill-informed when it suits him, when it's convenient to him. He obviously has the capacity to have read the resources that are available, to have read any number of articles, any number of books that are available that talk about ministerial responsibility. He's perfectly capable of having made appropriate inquiries.

Maybe he got advice from Jim Wilson, because you notice he didn't want to name the person, if any, that he spoke to. He said it was irrelevant. Maybe he went to Jim Wilson. Maybe Jim Wilson said, "Are you nuts? You can't write to the hospital restructuring commission," and Leach said: "But Jeez, you don't understand, Jim. I've got 600 constituents who called my office wanting me to do something. They're going to think I'm some sort of lame duck in the Premier's cabinet. They're going to think that perhaps I'm destined for dismissal because I screwed up on my staff person calling the law firm -- "

Mrs Marland: Mr Chair.

The Chair: Yes, Ms Marland.

Mrs Marland: I know it isn't in order to impute other members' motives and I'm wondering if this diatribe coming from the member for Welland-Thorold is in fact doing that very same thing in relation to his suggestion about a hypothetical conversation that took place between Minister Leach and Minister Wilson. I'd ask you to rule on that.

The Chair: I'd just say to Mr Kormos, we've heard the testimony and we've questioned Mr Leach. You had an opportunity to try to get into his mind.

Mr Kormos: I was scared, Chair. I wasn't going there alone.

The Chair: We also heard from Mr Harnick today, the Attorney General. I think you should tread a little bit more carefully with respect to what may have happened, especially since you had an opportunity to find out. It's strictly speculation on your part right now.

Mr Kormos: Wait a minute. Just like Oliver Stone does, or Leon Uris or James Michener -- we only had 15 minutes per caucus with Minister Leach. I was just starting to warm up and I thought we were making some fine progress with the questions. There was one question which he couldn't hear, so that one had to be repeated. You know what's remarkable? I'm told that some lawyers give advice to their clients as a tactic in the witness box that if you want some time to think of the answer to a question, say you didn't hear it or ask for clarification. Have you heard of lawyers doing that for witnesses, Chair? I don't know whether you've heard of it.

The Chair: No.

Mr Kormos: I'm told good lawyers do that with their clients.

The Chair: Do you want to tell us your source, Mr Kormos?

Mr Kormos: One question he couldn't hear; another question he wanted clarification; a third question received an answer totally isolated from what the question was. We only had 15 minutes. You know what has to happen. We've got to draw some --

The Chair: Mr Kormos, we've got the Hansard. We're dealing with the first amended motion right now. Don't you think you'd like to be a little bit more focused on that motion?

Mr Kormos: I'm focused, Chair. I'm as focused as anybody could ever be.

The Chair: Because we not only have to deal with that amendment, we have another amendment. We also have report instructions. We also have to deal with the motions. If you want to be focusing on the motion, that might be helpful.

Mr Kormos: Let's not waste time, Chair. Let me get back to what I was doing. We didn't get an answer to the question, "Did you ask anybody for advice?" I think that's intriguing. I was speculating, I don't think unreasonably: Why wouldn't he have asked Jim Wilson, the Minister of Health? They're in cabinet together every Wednesday morning; maybe that's the only time. They've got cabinet committee meetings and stuff like that they do together, and I was just wondering if it went like this: "Hey, Jim, what do you think?" and if Jim said, "Leach, are you nuts?"

The Chair: I think, Mr Kormos, you can make a reasonable inference in terms of why he should have done something, but why do you want to make it into sort of a monologue in terms of what their conversation was? Do you think that's really helpful?

Mr Kormos: I'm just trying to make it a little more real-life so you can get the feel for it.

The Chair: I think this is as real-life as it is. This is as real-life as you can get.

Mr Kormos: Are you kidding? This is silly. This is irrelevant. You've got one member of the Tory caucus who would have made a great Stalinist because that member -- I don't want to name her, but she wants to keep rewriting history. If the facts don't suit her, she'll simply state them in a way that they do. If certain points don't --

Mrs Marland: On a point of order, Mr Chair: That is a blatant example of imputing motives and I take very strong exception to, of all people in this House, Mr Kormos trying to explain what I do and how I do my work, thank you very much.

The Chair: Mr Kormos has not identified the member, but the type of language that you're using here, "Stalinist" --

Mr Kormos: No, I said she wasn't.

The Chair: She wasn't.

Mr Kormos: No.

The Chair: I don't think you should use that type of language, Mr Kormos. I just want to focus on the amendment.

Mrs Marland: Is there another female member on the committee this afternoon?

Mr Kormos: I'm blind to gender, Mrs Marland.

Mrs Marland: Right. I'm sure you are.

Mr Kormos: I wouldn't have considered -- and I'm not identifying the member, but I'm just saying that the member wants to rewrite history, wants to isolate facts and ignore others, wants to refer to only portions of the commissioner's report.

I think it's important that the report make reference to this correction. I think it's important that the committee understand that Judge Evans rarely would proactively address comments that are made at a committee hearing, as he did in his letter of July 17. It seems that Mr Evans -- and again, impeccable in his style, impeccable in the content, just dead on -- didn't appreciate the misstatement of facts, the factual error by Mr Leach when Mr Leach tries to defend his conduct.

If Mr Leach had said, "Look, I knew that it was against the rules, but I'll be damned if I'm going to let my position as a cabinet minister interfere with my ability to represent my constituents," I tell you, I'd be 100% behind him. That's the kind of chutzpah that I like and that I'll back up any day of the week.

If Mr Leach had said, "No, to hell with the Premier and these stupid rules" -- no, I've done it again, haven't I? But I'm just trying to put this -- I mean, if he had said that, I'd have been 100% behind him. I would have said, "I admire the minister's commitment to his constituents and the fact that this is almost an act of civil disobedience, and I'll link arms with him any day of the week."


Mr Kormos: Well, I will, when it comes to that.

But rather, he danced. He did the jig. He was sidestepping. He was waltzing and he was polkaing, and he was just dancing all over, again trying to be everything but a person who would accept responsibility for his conduct.

I think this committee has to address the fact that the commissioner has clarified what he meant when he recommended no penalty be imposed. I think with respect to what will be debated in short order as the second amendment, once the Premier -- the Premier's got to come clean. He was relying upon the commissioner's comment about the recommendation for no penalty as a rationalization, as the excuse for his inaction with respect to the matter.

As I said last week, if a beautiful political scenario -- and again, if the brain trust considered this and it was rejected, I commend them. I commend you. But if the scenario had been one wherein Leach said, "I was wrong. I breached the standards. I violated the law. I hope that no harm was done" -- and again, if the government had let us call the head of the hospital restructuring committee, we could have determined that, and I suspect the evidence would have been to that effect -- "and I have therefore submitted my resignation as a minister, knowing that the buck stops here," that's the proper thing to do. Reference has been made to any number of precedents wherein that has happened.


Then the Premier could have said: "Mr Leach has tendered his resignation, but Mr Leach is such a valuable part of my team, I value his advice so much and his conduct in cabinet has been such that I wouldn't dare lose his expertise and his input. Therefore, I'm telling you I refuse to accept his resignation and I will accept the responsibility." The buck stops there then. But we didn't see --

The Chair: Mr Kormos, I'm going to deal with each amendment one at a time. We're going to vote on it and then we'll move to the next amendment, just to help you focus on the first amendment.

Mr Kormos: Okay. Let's get back to the first amendment, then.

If that had been the scenario, Mr Leach would have fulfilled all of his obligations. Unfortunately, it wasn't until Mr Silipo was talking to him in the committee for that shortest period of time -- Chair, please don't talk about this as having been an opportunity to get the facts. Are you kidding?

The Chair: Mr Silipo and the subcommittee all were together with respect to the procedure and there was all-party agreement on how they wanted to proceed.

Mr Kormos: The government would only let the committee have two days. One of the caucus members -- I won't name her -- talked earlier today about: "Oh, we've only got two days to do this. That's all the time that's been allotted to us." Are you kidding? The government didn't want any days to do it. The government dragged its heels. The government tried to stonewall on the issue of a hearing. Then it played silly bugger with the witnesses to be available to the committee.

The Chair: Mr Kormos, do you have to use that type of language?

Mr Kormos: That's not bad language.

The Chair: It's certainly not parliamentary.

Mr Kormos: Okay, played silly whatever about the witnesses. Look what it did: No Jim Wilson, no Judge Evans, no head of the restructuring committee, who is the recipient of the letter from Mr Leach. Facts? They didn't want the facts to be brought forward.

Charlie Harnick, the Attorney General -- first of all, I told you, I've got a little bit of a hard time hearing him talk about integrity. I do. You don't know him the way I do. So I've got some problems with that. But he knows nothing about the scenario. He knows absolutely nothing about --

The Chair: Mr Kormos, you've identified the member. You're sort of impugning his integrity.

Mr Kormos: Who?

The Chair: Obviously the Attorney General.

Mr Kormos: I've directly attacked him.

The Chair: Do you think you could withdraw that?

Mr Kormos: On other occasions I've directly attacked him. You know some of the things I've called him in the House. I'm not going to do it now.

The Chair: You don't need to do that now.

Mr Kormos: I'm not going to call him what I've called him in the House, and once outside in a scrum in an effort to try to entice litigation from him, knowing that he wouldn't be able to prove his case.

But we haven't had the facts. This committee process has really been quite silly. The committee process has been one where the government has used its majority on the committee. Again, I understand the wherefore and the why and the how and how that develops and where it comes from. I suspect it's Mr Clement -- is it Mr Clement? Yes, okay. It's Mr Clement who meets with somebody from the House leader's office. The staff people are here and they report back. Everybody gets together and they assess at the end of the day: "How did we do today?" It's no secret. "How did we do today? Did we take any shots? Did we earn any points? Were we able to put out that fire?" That's how these things work. They're pretty phoney at the end of the day. It's all about optics. It's all about getting rid of this with the least amount of damage possible. That's what's sad.

I can't speak for the Liberals and I wouldn't purport to. You don't know how tempting it was to have joined them. I can't speak for Mr Silipo, but I suspect he might share that. To have to come back here today, a whole week later, for me, coming up the QEW this morning in traffic jams, I was late and the whole nine yards. It was a little tempting, but we stayed, because rather than doing drama, we wanted to have a crack at hearing some answers to some questions.

There were precious few answers. Answers that could have been obtained weren't made available because of the government's refusal to permit certain witnesses to be called. It was the government that insisted that this last for only two days. They know why they did that. They did it because the less exposure there is, the less damage can be wrought. This isn't appropriate, but I suspect that Mr Leach is being set up for a fall in any event, that he may find himself cut loose or transferred to another ministry. But the Premier's been very good, very cautious and very skilful at not having fired anybody from cabinet. Nobody's been fired from cabinet. I'm sorry: one in the miniest of shuffles, but it was before any scandal erupted. There were no allegations of misconduct etc. It was just a bit of quiet little surgery where the cyst was removed or at least drained, and there was no fanfare.

The government's going to get its way with the motions. I'm anxious to hear where Mr Clement stands on especially this amendment. The next amendment, which I'm not speaking to now, I could live without if worst came to worst.

The Chair: Are you speaking about number 1 or 2?

Mr Kormos: I'm not going to speak to amendment number 2, because that's not on the floor now, but I could live with that being defeated by the government.

But if this amendment number 1 isn't included -- and I can understand the government's reason not to want to include it. They've got a whole lot at stake; they've got the game plan they set out, that, "After all, the commissioner said he didn't have to resign," which the commissioner never said, but they wanted to say that. They've got a whole lot at stake. They knew it. I don't understand. I can't for the life of me imagine why some of the smarter people on that government caucus -- maybe they resisted; I understand that too. Maybe they said: "No, don't try that. Don't pull that one off. It won't work. It's transparent." I suspect maybe they did. I suspect they said, "Don't play that game," but then somebody said: "No, that's the game plan we started with. We've got to stick to it." I really don't understand that.

Some day 10 years from now, when he's the Premier and I'm semi-retired down in small-town Ontario doing a little bit of legal work here and there, I might have a beer with him -- I don't want to identify him -- and get the straight goods. But he knows I know, and that's the neat thing about this. I know exactly what I'm talking about on this one. I'm dead on, because I've been in the government caucus. I didn't find it any more attractive when I was in government than I do in opposition, and my colleague will probably attest to that. I didn't. I found it sordid. I found that it eroded not the cash register honesty of anybody, okay, not the dollar-and-cent honesty, but it begins to erode the intellectual integrity of people. It really does.

The bank can foreclose, and your car, your house and your cottage can be gone tomorrow, like that. It's happened to many people. You can lose all that stuff, but your integrity you can only give away. Nobody can seize it. It was like what old Santiago said. Remember what he said? "A man can be destroyed but never defeated." He said that as he was towing that corpse of a marlin back to Havana. "A man can be destroyed but never defeated." That's what's wrong with these types of games and these types of processes, because defeat you only do yourself. That's what he was saying. Defeat is surrender, and only you can do that. Nobody else can defeat you. Defeat is something that comes within you; somebody can destroy you. But what this process does is, people defeat themselves. They do undergo defeat, because they allow their integrity to be undermined, to be eroded. They're left here, some of the more clever ones and, quite frankly, honest ones, otherwise good people, shaking their heads, saying: "What the hell did I do today? It was a messy business I got myself in."

This has been a sad committee process. I've been in a lot of them -- other than some of the real oldtimers, just about as many as anybody. This got off on a sad sort of footing and is going to wrap up on it. It'll be interesting to see how the government members respond to this amendment. I'm not challenging them. It'll be one chance for them to lay waste some of the comments I just made. I'd be pleased to have some of those comments wasted. That's all I'm going to say about this.


Mr Clement: Just a couple of brief points about the amendment: I'm glad Mr Silipo took to heart my suggestion from last week, which was that if we had any issues we wished to have clarified, there is a way to do that and that is simply to ask the commissioner. We, as members of the Legislature, have an untrammelled right to have correspondence with the commissioner and to seek clarification on his views as to how he purports to enforce the Members' Integrity Act and what his interpretation of that act is.

There are whole books published every year -- the annual report of the Integrity Commissioner -- which are filled with scenarios that are presented to the Integrity Commissioner by members on whether something is inside or outside or on side or offside, and the Integrity Commissioner propounds his views. The fact that Mr Silipo wrote to the Integrity Commissioner between last week and this week was perfectly within his right to do and I'm sure some would see that as absolutely commendable. I don't have any objection to that.

There is a division, however, between any additional commentary by the Integrity Commissioner and what the purpose of this committee is. We are bound, whether the members opposite like it or not, by the order of the House, which said we are to consider the report, not extra opinions by the Integrity Commissioner, however valid those opinions are. I happen to agree with the Integrity Commissioner. I agree that it is not the Integrity Commissioner's place within the legal boundaries of the Members' Integrity Act to dictate who is inside or outside Mike Harris's cabinet. I agree with the Integrity Commissioner on that, but that is completely irrelevant to what was asked of the Integrity Commissioner and the answer he replied with in the report, and we are here to consider the report. I find both amendments actually to be outside the purview of what this committee was asked to do on behalf of the Legislature and what we're compelled to report back.

As for the Premier of Ontario and his position on Mr Leach's position and how it is affected by the Integrity Commissioner's report, I think this requires, after Mr Kormos's remarks, further clarification. I was compelled to go back to the Hansard of the Legislative Assembly because Mr Kormos made a big point about how the Premier in fact was relying on the conclusion of the Integrity Commissioner that no sanction be required in this case to keep Minister Leach in the cabinet.

Upon a commonsensical reading of the Premiers's remarks on June 25, that is not the case. I think the Premier was quite clear and I'd like to quote very briefly from Hansard, page 11091, from June 25, 1997, where in response to the leader of the official opposition, Mr Harris says:

"What the Integrity Commissioner said, for the record, since you didn't want to put this part of his report in the record, was that the `action was an error in judgement.' He said it was `based on his limited experience in government.' He said it was `made in good faith in the mistaken belief he was entitled to do so.' He said, `I recommend that no penalty be imposed.'"

Mr Harris goes on to say: "Quite contrary to what the member is alleging, I am satisfied with the report of the commissioner. In fact I go further, to seek further clarification to see what implications this may have in other areas."

That is in fact what the Premier said. He did not say, "Because no penalty was recommended, I am keeping him in my cabinet." He referred to the conclusion that there was an error in judgement, to the conclusion that it was based on limited experience. In fact, as the Attorney General said today, we all have limited experience with the application of convention in the Members' Integrity Act, because this is the first time in the history of this kind of legislation that the Integrity Commissioner has applied parliamentary convention rules rather than legal rules, but that's over and above what the Premier said. He also said, as the commissioner said, the error was "made in good faith in the mistaken belief he was entitled to do so."

I would conclude then that there is a whole web of reasons that not only did the Premier accept the Integrity Commissioner's report, but made his conclusion that it was appropriate Mr Leach continue to be a minister of the crown, which is the Premier's perfect right to do. But I did want to correct the record. There seemed to be a conclusion made by Mr Kormos that there was a direct and single correlation between the conclusion of the Integrity Commissioner that no penalty be imposed and the current status of the minister. It is clear from Mr Harris's statements in the House that I have read from Hansard that there is more to it than that and that he relies on the totality of the commissioner's report and all the commissioner's findings to make that conclusion.

The only final point I would make, which the opposition has seen fit not to respond to from my remarks last week, is a close reading of the commissioner's conclusions with the Members' Integrity Act itself. The Members' Integrity Act is quite clear that there is a range of options available to the commissioner upon the finding there has been a violation of the act. The commissioner may decide that no penalty be imposed, or he may decide the member be reprimanded, or he may decide the member be suspended, or he may decide the member's seat be declared vacant.

Let's just take the first two, no penalty versus reprimand. He could have reprimanded the minister; he chose not to do so. I find that highly significant. We are speculating a little bit today that perhaps one of the reasons was that this was the first time he applied convention to a case, but certainly from the words of the Integrity Commissioner himself about how this was made in good faith, how it was an honest mistake -- I'm paraphrasing here -- and how it was based on limited knowledge, therefore he concluded that no penalty be imposed.

He could have reprimanded the minister. Maybe that would have created another political dynamic the Premier would have had to respond to. But the fact of the matter is that the commissioner made a series of conclusions about the context and the circumstances in which the error was made: good faith, error in judgement, based on limited experience with these sorts of things.

All that context is very important and goes to the reason why, in my view, the commissioner decided no penalty be imposed rather than -- in this case probably a reprimand was the other logical alternative, and as we've seen, as Mrs Marland and others have put on the record, there have been occasions when the commissioner has reprimanded. The member for Etobicoke West -- well known to us all -- was reprimanded in his day, and as I recall at the time, duly made an apology and said it would never happen again and it has never happened again in his particular case, of the infraction that occurred in that case. So there have been cases I can recall where a reprimand was in order and was duly accepted by the offending member.

In this case, no reprimand was suggested by the commissioner and all that goes into the political context in which we find ourselves, and I think it's a better explanation than the one offered by Mr Kormos.

In conclusion, I am quite happy with the motion I have presented. I do not seek to amend it in any way. I want it to be focused on what this committee is empowered to do, which is to comment on the report itself, which this motion does, and I would encourage members to adopt the main motion without amendment.


Mr Silipo: I guess we can take from Mr Clement's motion that the government members' marching orders are pretty clear, and that's fine, but let's also be clear about what they're based on because they're not based on just staying within the report, with all due respect, Mr Clement. They're not based upon simply this question of what the commissioner found and what his penalty was, which was to not reprimand Mr Leach, because as I think Mrs Marland pointed out earlier, under the legislation, once the commissioner has found the error was committed in good faith, he can't impose a penalty, he can't impose a reprimand.

That isn't the issue, nor am I suggesting -- I want to be really clear about this -- through either of the two amendments I've put that the minister should resign or should be fired. I have taken that position in the House. I still believe that's the appropriate thing for this minister to do. I talked about that last week. But let's also be really clear. Neither of my amendments talks about that. If you want to vote against them, fine, vote against them, but don't vote against them on the rationale that I'm asking for a higher test or that I'm asking for somebody's resignation, because in these motions I am not.

What I am saying in these motions is that in addition to our responsibility to report back to the commissioner, and we would be reporting back to him by saying we adopt and accept his report -- I have no problems with that and no problems with your motion as far as that is concerned -- the main reason I've put these two amendments is to deal with the essential issue and the essential approach that both the minister, up until he appeared here last week, and the Premier to my knowledge still today, have taken, which is to hide behind the commissioner's report and pretend that the commissioner's report dealt with all the issues surrounding the conduct of this minister around this issue; you know as well as I do that is not the case.

The Premier in a series of answers to a series of questions I put to him in the House continued to take the position back on June 25 that he was accepting the report of the commissioner and therefore didn't have to do anything else. You know better than that. You know that doesn't deal with the matter. That's why this additional clarification of what the commissioner said and didn't say, or more correctly what the commissioner's powers and responsibilities are and what they are not, is really crucial if you want to do any sense of justice to this issue, because the Premier was wrong when he said in the House he was accepting the advice of the Honourable Justice Gregory T. Evans, "who suggested to me what was the right thing to do, and I am doing that."

Well, I'm sorry. The minister himself, the person who has been the centre of all this attention, himself last week acknowledged that the issue of cabinet membership is outside of the commissioner's findings. You now have unequivocally from the commissioner his own words that say that.

You can ignore that. You can pretend that doesn't exist. You can continue to just spin the line you have been spinning on this, but the truth is out. It's out because that's just the way it is. It's out because you can't prevent it from getting out there. Sure, you can continue to spin the line that somehow this is extra-opinion, but it's not extra-opinion when it deals essentially with what are the powers of the commissioner who is charged with the responsibility not only of the finding of whether someone has breached the act, but second, of what penalty to impose if he finds a breach.

You cannot hide behind a penalty that wasn't imposed as a justification for not imposing it when the person charged with the responsibility for imposing it does not have that responsibility and that right in the law. That's what this amendment says. You know that just as clearly as I do, that that's what this amendment says. It says, "Let's put all the information back in front of the Legislative Assembly to which we are charged with the responsibility of reporting," and, "Let's on down the line in the second amendment say to the Premier and the minister: `We want to be clear that we understand that the question of what happens to you and what you do, Minister Leach, or what you do, Premier Harris, with respect to how you judge the conduct -- not how the commissioner judges the conduct but how you judge the conduct -- of Minister Leach, is really up to you to determine. It's up to the minister himself and, second, it's up to the Premier.'" That's all these two amendments are saying. We can fight another day about whether the minister should resign or not, but that's not in either of these amendments.

Please, if you want to vote against them, vote against them for whatever reasons you can dream up but not because of that, because that isn't in here and it's purposely not in here because I want to push this issue to see how much of a smokescreen this whole thing is or how much it really is about being straightforward with ourselves and with our colleagues in the Parliament regardless of parties. That's why I chose to stay rather than take the route that the Liberal caucus members took, which was to walk out of the meeting last week. It's because I see my role in opposition as holding you guys accountable, but doing it in a way that, when situations warrant, is tough but also reasoned. In this case I think that's what's called for. What's called for is some decency on all sides and some decency that says, "This is the realm of the findings."

Yes, we didn't have these findings from the commissioner by having him present, but that was because you excluded him. You can't now turn around and say, "We excluded the commissioner from being here, therefore the information he sent us is irrelevant." I'm sorry. You can make that argument. I don't think it washes out there. I don't think the people following this or listening to this or watching this or hearing the reporting from this are going to buy that argument.

Maybe your spin line is sort of the next best thing that you've got to a simple admission, which could have happened back on June 25, by the minister that he screwed up and was prepared to take responsibility for that. I suspect he might have been willing to do that, but it was clear again, my interpretation, only my interpretation, from what he said to us last week that, if anything, the Premier intervened and said, "Sorry, Al, you're not going to resign. I don't want a resignation," because then the Premier would have been faced with two other ministers, and what was he going to do with them?

But I want to tell you, regardless of partisanship on stuff like this, what we do need, if we really have any seriousness about tackling at all the cynicism that's out there from the public towards all politicians, is when things like this happen for people to have the decency, the guts and the courage to own up to them, because then I think the public, and quite frankly all of us in opposition, would be a lot more understanding than when there is the stonewalling, when there is this pretence that nothing wrong has happened.

I've said before and I will say again, I'm even prepared and very open to the idea of looking at what changes need to be made to the rules, because I think there needs to be more leeway given to ministers to be able to represent their constituents on issues like this. I have no qualms about approaching that, but that's not what we're discussing here today. What we're discussing here today is not just so much the conduct of Al Leach as it related to this issue and the previous incidents when he has been found to be in trouble, but what this has turned into, as I see it, is more the approach that the government, starting with the Premier, has taken to stonewall any acceptance of responsibility for a screwup that one minister has made. I think that's actually a far worse mistake than the original wrong that Mr Leach committed.

I think when the Premier tries to hide behind the commissioner's report and then when there are marching orders given to the government members to say, "Ignore any evidence to the contrary, ignore any reporting back that says what the lay of the land is," as in this case with this very simple amendment that says what the law is according to the man who is charged with interpreting that law, I don't have any other way but to conclude from your refusal to adopt this that you're just continuing that kind of stonewalling that clearly the Premier has set you up to do. While a part of me understands the role you're playing as members of the government caucus, the parliamentarian in me abhors what you're doing, because you're being put in a position where you're trying to perpetuate something that's fundamentally wrong.


As I say, that something is no longer Al Leach's breach. We're way past that. But it is instead the continued pretence that nothing wrong has happened here and that all you have to do is hide behind the commissioner's report, ignore any facts that are outside that, in your view -- that you can put outside that -- because otherwise you'd have to admit that what the Premier has said is wrong. My God, how can you do that? But that's what's at issue here. We'll see. Obviously, if Mr Clement's position persists, this amendment and the next amendment will get turned down. That's fine. We'll put together our dissenting opinion, we'll get it in front of the Legislature.

The issue's not going to go away and it doesn't matter, really, at this point what's in the report or what isn't in the report, because what's more important is what people understand out there. What I think people have understood through this whole process, and again why I chose to stay here rather than run away, is that once again you have a government that tries to shape the truth the way it suits them, ignores the facts because the facts get in the way of the truth. I'm sorry; I think people out there are more intelligent than you give them credit for. People won't forget.

The Chair: At this time, we can vote on the amendment to the motion.

Mr Kormos: Recorded vote, please.


Kormos, Silipo.


Baird, Jim Brown, Clement, Fox.

The Chair: The amendment is lost.

On the next amendment, moved by Mr Silipo, any discussion?

Mr Kormos: Mr Chair, I should indicate, and perhaps Mr Silipo will as well, that the comments I made are applicable to this amendment, although I was speaking of course only to the first amendment, as they were to the amendment that the Tories just defeated.

The Chair: A recorded vote?

Mr Silipo: Please.


Kormos, Silipo.


Baird, Jim Brown, Clement, Fox.

The Chair: The amendment is lost.

With respect to the main motion --

Mr Kormos: Chair, please, just the briefest of comments. I am not surprised but extremely disappointed that bright, capable members of the Tory caucus would let themselves be whipped in this manner. I have to concede that I have at times held them in regard. I'm well aware of the qualities that some of these people opposite us have, some of their skills, some of their background.

As I say, I was tempted, because in essence I very much agree with the Liberal analysis of this back last week, to join them, but I was also curious and interested enough to want to be a part of the debate to see whether we could make any headway. When we got this motion presented last week, the writing was on the wall. That was it. Those were the marching orders. That was going to be the framework and nobody dared venture beyond that.

My -- not my worst fears, because thank goodness this nightmare will be over in a year or a year and a half, but as it is for the moment, this committee has just been, as I say, silly. It wasn't designed to achieve anything. It was designed to conduct an inquiry -- not an inquiry but a consideration -- report back, and, as I said last week, in the most Canadian of ways, with a stonewalling and a whitewash.

Here we go again. Let's do her. Let her go. Let's get it done and over with. But it's not going to go away. Watch.

The Chair: A recorded vote on the motion moved by Mr Clement.


Baird, Jim Brown, Clement, Fox.


Kormos, Silipo.

The Chair: I declare the motion passed. At this time we have an opportunity for further discussion or we can get into report-writing instructions.

Mr Silipo: Let's not belabour the point. I think you've got a motion, unless Mr Clement or any other government members have any additional motions. We don't have any more. You've got your instructions. Let's get the report written and be done with it.

Mr Clement: Just to follow on Mr Silipo's remarks, I think we certainly have a pretty good sense of the submissions by Minister Leach and Attorney General Harnick. We had the discussion on both days and a culmination in a motion that accepted the report of the Integrity Commissioner. I think you've got the makings there of a report to the Legislature.

To be helpful, I am prepared to move a procedural motion which would direct the subcommittee to report the contents of the motion which you just passed, namely, that we accept the report of the Integrity Commissioner, and would in some brief way encapsulate the submissions of Minister Leach and Attorney General Harnick and the debate that occurred in this committee over the past two days.

The Chair: Paragraph 8 of the subcommittee report indicates that the subcommittee is authorized to work with the Chair to finalize the report based on motions adopted by the committee, including making decisions regarding its adoption, translation and form of presentation, and authorized to report to the House, to paraphrase.

I don't know whether there is anything else that you want to add to that. It seems to be there. If there's nothing else to add --

Mr Clement: I've nothing to add.

The Chair: If there is nothing else to discuss on the matter, I declare that the hearings are complete and subject to the report of the subcommittee.

Mr Silipo: I guess we'll deal through the subcommittee with the time lines by which you want our dissenting opinion.

The Chair: Yes, I understand that you are going to put in a dissenting opinion. I would think we'll have a subcommittee meeting. The Liberal caucus representatives are not here, so we wouldn't be scheduling one today. But I think we should try to schedule a meeting in due course. Is that all right, Mr Silipo?

Mr Silipo: Sure. I don't know that the report needs to be much longer than in effect the motion that's in front of us, but if you want a more narrative explanation of the process, that's fine. I don't have any problems with that.

The Chair: Okay, I understand. Mr Clement?

Mr Clement: If Mr Silipo is saying that the motion is the report, that's one option available to you.

The Chair: We're not having a subcommittee meeting right now. We're essentially finalizing the hearing process and if there are no further motions, no further discussions, then the hearings are complete. I thank everyone for participating and I'll be in touch with the subcommittee representatives to deal with the report.

The committee adjourned at 1520.