Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills — Issue No. 6

SELECT STANDING COMMITTEE ON PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS

Present: Colin Hansen, MLA (Chair); Harry Lali, MLA (Deputy Chair); Bill Bennett, MLA; Jagrup Brar, MLA; Murray Coell, MLA; Mike Farnworth, MLA; Jenny Wai Ching Kwan, MLA; Norm Letnick, MLA

2. The Acting Chief Legislative Counsel, Janet Erasmus, Q.C., and Senior Legislative Counsel, Dawn Leroy, briefed the Committee on the revision to the Insurance Act (RSBC 1996 c. 226) pursuant to section 4 of the Statute Revision Act (RSBC 1996 c. 440), and answered Members’ questions.

3. Resolved, that Pursuant to section 4 of the Statute Revision Act (RSBC 1996 c. 440), the Committee approve the revision of the Insurance Act (RSBC 1996 c. 226) and recommend that it be brought into force and further, that the Committee authorize the Chair to endorse the Committee’s approval on the title page of the Insurance Act Statute Revision. (Murray Coell, MLA)

4. Resolved, that the recommendation of the Committee be transmitted to the Lieutenant Governor and further, that the recommendation form the basis of the Committee’s report to the House which the Chair shall deposit with the Clerk of the House and present to the House at the earliest opportunity. (Murray Coell, MLA)

6. The Committee recessed from 10:41 a.m. to 10:45 a.m. and from 10:57 a.m. to 11:20 a.m.

8. The following witness appeared before the Committee and answered questions on the Members’ Conflict of Interest Act:

The following electronic version is for informational purposes only.
The printed version remains the official version.

REPORT OF PROCEEDINGS
(Hansard)

SELECT STANDING COMMITTEE ON
PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS


CONTENTS
Page
Revision to Insurance Act	29
J. Erasmus
D. Leroy
Members' Conflict of Interest Act	34
P. Smith

C. Hansen (Chair): If I can call the meeting to order, we've got two things on the agenda today. The first is with regard to the Insurance Act. We have joining us today Janet Erasmus and Dawn Leroy, both from leg. counsel, to explain to us what is being asked of us in these very minor housekeeping amendments to the Insurance Act.

J. Erasmus: Good morning, Chair and members, and thank you. On behalf of the office of legislative counsel, Dawn and I are very pleased to be bringing a revision of the Insurance Act for your consideration today.

The revision is prepared under the authority of the Statute Revision Act. I understand you were provided with that before. Everyone has, of course, read it and has questions, which we'll be pleased to answer later.

As the hon. Chair will particularly remember, the Insurance Act was subject to some significant amendments in 2009. These were amendments that were prepared in conjunction with the province of Alberta to harmonize the two acts for the industry. Those 2009 amendments are about to come into force on July 1 — Sunday next. Our hope is that you will approve the revision, because it is designed to come into force in relation to those amendments so that the industry will have a clean, fresh, newly numbered act.

To assist in your consideration today, I'm going to give you a brief description of statute revisions and their history in British Columbia, and then Dawn Leroy, who is the senior legislative counsel and who was responsible for preparing this revision, will walk you through the very minimal changes here. We will be pleased to answer any questions you have about statute revision generally or this revision in particular.

As I said, we hope that in the language of section 4 of the Statute Revision Act, you will approve the revision and recommend that it be brought into force. Your recommendation, then, is a recommendation to the Lieutenant-Governor, and the process from this point would be that a copy of the revision would be provided to the Lieutenant-Governor.

Once this is signed by His Honour, then it is returned to the buildings here and deposited with the Clerk of the Legislative Assembly. Once it's deposited, it can be brought into force by regulation, like many acts are brought into force. The revised act, if approved and processed, will then appear, printed in the current session's statute book, and be assigned a chapter number from this current session, and we'll have a revised Insurance Act of British Columbia.

What are statute provisions? Well, legislative counsel call them cleaning up the statute book. Over the course of time, as you will appreciate, acts are amended. When they're amended to add new provisions, those come in with decimal numbering, and when provisions are repealed, we don't reuse the sections. Those sections then become section numbers with no content, gaps in the legislation. So you have a resulting piece of legislation that's a combination of clutter and gaps for the readers.

In its most basic form — and that's what we're bringing today — a statute revision will consolidate an act with all the amendments since the last revision and renumber to remove the decimal gaps and the blank section numbers.

The powers of chief legislative counsel in conducting a statute revision are set out in section 2 of the Statute Revision Act, and most of them relate to numbering, ordering, consistent language. There is no authority for substantive amendments. These are not amendments; these are revisions.

To follow the cleaning analogy, statute revision really allows us to dust off the legislation shelves and put the sections back in properly ordered rows. Sometimes we do a little bit more. We put all the little ceramic ponies facing the same direction. That's revision.

They have a long and honourable history in British Columbia. The first statute revision was in 1877, only six years after we became a province, and we've done a revision of the statute book every ten to 20 years — nine to 19 years — since. Our most recent full statute revision was the 15-volume Revised Statutes of British Columbia 1996. That revision was approved by this committee on February 28, 1997, and I was here doing an equivalent presentation at that time. Perhaps there was one other member who was at the committee at that time and also at the statute revision process.

The 1996 statute revision was the first one we did under what we call our new Statute Revision Act. It now dates back to 1992. It actually had a number of innovations in that act.

One of them was that chief legislative counsel was assigned responsibility for the revision. Another one was that we retained parliamentary oversight of the revision by this approval process of a standing committee of the Legislative Assembly and a recommendation to the Lieutenant-Governor. The third thing we did was we authorized limited revisions. Before this time it has always been a general revision of all the public acts of the province. In 1992 we authorized limited revision of individual acts.
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There are a number of jurisdictions in Canada which have now followed our innovations from 1992.

About limited revisions, this is how I described it to a conference of the Commonwealth Association of Legislative Counsel in 2005 — why we were proposing this approach of limited revisions. It's the experience of legislative counsel that "certain acts are subject to far more amendment than others...and that many of these are, in fact, the statutes that are subject to a lot of public use. In other words, they're in need of revision long before the general statute book." And the public benefit from revising an individual act is that much greater.

Second, we did hope that if we'd made good choices in the 1996 revision in terms of format and language, there would be less need for a general revision on the ten- to 20-year time frame that had previously been used.

Third, general revisions really allowed us only to deal with private acts, and the limited revision authority allows us to provide a revision of a private act. Did I say that right? Public acts. Private acts.

A general revision really requires significant dedicated resources in the office of legislative counsel — considerable time. It's a massive undertaking that takes a few years to do. Limited revisions are prepared by our office on a time-permitting basis after we complete the drafting of bills and regulations for the government.

Until today we've only had three limited revisions. They've all been of private acts. In 2000 there was the Vancouver Foundation Act and the Victoria Foundation Act, and in 2006, for its centennial, there was a revision of the UBCM Act. I was the legislative counsel on each of those, and I was here at the committee for those.

Now, today, we are bringing you the first limited revision of a public act, 15 years after the general revision. We do so with an intention that this will be the start of more regular appearance before the committee with limited revisions of public acts, because after 15 years of statutory amendments there are a fair number of candidates for revision out there that could benefit the readers, the public, with having a cleaning up of the statute book.

If there are questions, I'd be pleased to answer them. Other than that, I would pass it over to Dawn Leroy, who will take you through the specifics of this revision.

M. Coell: Janet, you mentioned that we were trying to harmonize with Alberta. Is Alberta having to go through the same process to have an identical act as us, or are they…?

D. Leroy: Their act will not be identical to ours. Their Insurance Act covers a lot more matters than ours does. Ours is general insurance — life and accident and health, primarily. Theirs also deals with motor vehicle and everything else that we've moved into other acts. But the parts that are the same we tried to line up.

Now, the numbering…. Whether they revise their act or not is another question. It's got nothing to do with us. The goal at the time was to get the provisions in harmony.

B. Bennett: Sorry. I missed the first five minutes, so hopefully, I'm not asking this out of ignorance, although I guess I am asking it out of ignorance. I'm just curious. I want to understand this. Through the Statute Revision Act, legislative counsel was given the authority to revise statutes in accordance with certain specific conditions and limitations, and upon signature by the Lieutenant-Governor, the act is changed, and all of the other things that you have to do in order to get there.

J. Erasmus: Legislative counsel, being very precisionist about process and writing it in law, would say that you're correct. But in the sense, it's a recommendation of a committee of the Legislative Assembly, so it's His Honour acting by and with the advice of a committee of the Legislative Assembly to recommend it be brought into force.

B. Bennett: But you know what my question is. My question really is…. This committee and this process that leads to this committee and the Lieutenant-Governor's signature changes legislation without it ever going onto the floor of the House.

J. Erasmus: Yes. The changes are extremely limited. They're limited to the powers in section 2 of the act. In this case we are bringing, as Dawn will describe, a renumbering and two word changes for consistency, and she'll explain specifically what they are. But it's a very limited revision.

In the 1996 revision we undertook much greater changes so that we changed "shall" to "must" across the board. We used gender-neutral language throughout the statutes. We split long sections. I don't know if anybody remembers the provincial sales tax in the old days, before 1996, but it actually had a subsection that was 2.0171 — right? So there was renumbering. There was splitting of sections. No change to…. That's the nature of our responsibility, to not change the law but to reorganize it and present it in a more readable and consistent format.

H. Lali (Deputy Chair): I'm just interested in knowing: is all of this housekeeping, or is there — and you mentioned just a couple of words that are going to be changed — something in here that's going to be so earth-
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shattering that it's…? What does this actually mean to the layperson? What is he or she going to think in terms of any changes that might happen in their lives as a result of this insurance act?

C. Hansen (Chair): I think that's exactly what Dawn is going to address. But let's see if there are any other questions for Janet around why we're here and the authority to undertake this process or the history. We could deal with that now, and then we will come back to that point, because that will be what Dawn presents.

Anything else? Well, Harry, actually your point was a good segue to what Dawn's going to take us into now.

D. Leroy: Thank you. As Janet said, the intention of statute revision is not to change the law but rather to tidy the law so that it's clear and accessible. The Insurance Act is what we at legislative counsel call ripe for revision. That is, it's no longer clear and accessible for the following reasons.

By amendments made in 2003, part 6 of the act respecting optional motor vehicle insurance was repealed and moved to the Insurance (Vehicle) Act. This left sections 132 to 188 empty.

As Janet has said, the Insurance Amendment Act, 2009, is coming into force on July 1. That act repeals part 5 governing fire insurance, most of which is moved to part 2, which contains general insurance provisions. This will leave sections 119 to 131 empty.

As well, the 2009 act added or moved over 30 sections, which have been inserted as decimal point sections between the original section numbers. There were already several decimal point sections in part 7 of the act respecting home warranty insurance and deposit protection insurance.

Gaps in numbering in decimal point sections tend to make an act difficult to read and use. This act is an act much used and cited by the insurance industry and by lawyers involved in insurance matters. There will be considerable public benefit in providing a cleanly numbered act at this time. On the other hand, if the 2009 amendments come into force without the revision, the industry and bar will become used to the odd — that is, decimal and gapped — numbering, and so be resistant to future revision. This is an opportunity in respect of this act that we may not get again for some time.

The revision we are presenting to you for approval today makes very few language changes. It's essentially a renumbering exercise. As you can see from the table of concordance, which you should have in your materials, the sections of the revised act will be sequentially numbered from 1 to 154. Currently, with the gaps, they go to 196. The parts will be sequentially numbered from 1 to 6, with the two blank parts. They now go to part 8.

Then there are the two small wording changes, both of which are authorized by the Statute Revision Act. The first is in section 1(1), in the definition of "mutual company." Since 1996 legislative counsel has developed a new style of definition by cross-reference. This definition is the only one now left in the act in an old style. Seven definitions in the new style are already in the act, and more are being added by the 2009 amendments. This change will just provide a consistent style throughout the act.

The second wording change is in section 58 of the revised act and corrects an error from the 2009 bill. Section 58 is in the life insurance part. The revision replaces two references to "section" in section 58(4) with "subsection" for consistency and parallelism with the accident and sickness parallel section, which is 116. It was an error. It should have said subsection before. So it's just a correction, and there's no question that it only refers to "subsection," because in context it can't mean anything else. That brings it within revision.

The redline version you have — you should have two versions of the insurance revision, one redline and one clean — shows the renumbering and the other two changes.

The other change that has been made…. The marginal notes, the headings, have been changed to match Alberta's headings for the same sections, because harmonization with their act was one of the goals of the 2009 amendments. But because marginal notes are not technically part of the enactment, these have been changed as a matter of editing and are not part of the revision.

In closing, like Janet, I hope this is just the first of many revised acts that we bring to this committee in the next few years. I'm happy to answer any questions.

C. Hansen (Chair): You're telling us that some minister brought before the House a statute that had a mistake in it? Who was that minister?

J. Brar: I'm a bit more clear about the picture now as to what we're doing here when we're talking about the Insurance Act. My understanding is, as Harry said earlier, that we are not talking about any sort of amendment to the act. We are basically…. What you're doing is to simplify the act so that it makes it probably more clear to the public.

J. Brar: I understand that process. I have two questions. The first one will be: is this the standard process, and how
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frequently does this process take place?

The second one. On page 5 of this act, under "mutual company," this is verbatim. Under the old act, it says that "mutual company" means "a corporation formed under the Mutual Fire Insurance Companies Act." Now, to me, it is very clear to a layperson what that means — right? "Mutual company" means a corporation formed under the Mutual Fire Insurance Companies Act.

But what has been changed? It's: "'mutual company' has the same meaning as in the Mutual Fire Insurance Companies Act." It is more vague. It means, basically, that a person has to go into the act and find what it means. Can you explain that to me — how this particular line simplifies this for the public?

D. Leroy: This is the change that is for consistency with our office style. Over the last 15 years we've come to where we are cross-referencing a definition from another act. We now say "has the same meaning as." The goal is for consistency in the statute so that where we've used the same words, we mean the same thing. This one was out of sync.

Yes, it did maybe…. I'm not sure you wouldn't have had to go to the other act in that case, as well, to see what an act incorporated under that act was. It's a defined term in that act. When you go there, you find, probably, that it means "an act incorporated under this act." I don't have that with me right now. I'm sorry.

It is more for consistency of style, and it doesn't change the meaning. That is one of the roles of chief legislative counsel — to achieve consistency in style.

J. Brar: I understand that, the consistency point, which probably is for the use of the people here — right? When we talk about the public, if this is for public use, this certainly…. The previous act was way more clear than what we are revising under the new revision that we are proposing here. That's what I'm saying.

If somebody reads this from outside, sitting outside somewhere, the previous language was pretty clear, but the language under the revision is completely vague. It means that you have to go to the act and find out what it means. So that's my question.

J. Erasmus: You are correct in terms of the ease of reference, and it comes down to a legal interpretation issue where it is important for acts to be read consistently by courts. There are two fundamental rules that a court uses when it reads legislation.

The first one is that every word has meaning, that words are not added just for repetition or emphasis. Every word does something legally.

The second rule, and this is the one that applies here — different words mean different things. When you talk about a consistent style — being someone who is a legislative counsel — you're talking about more than just a way of communicating. You're talking about concern about how a court will read differences in language, so we put a very high value on consistency. It's higher than would, for example, be the case if you were writing an English essay in school, where — what did they call it? — elegant variation got you good marks. No. At legislative counsel we use exactly the same words to get the same effect, for legal reasons.

I've got one. In terms of the industry itself, the insurance industry is one that is known for its copious forms. Is there a fair amount of reprinting of forms that the industry will have to do when this is proclaimed? I assume today there are forms where it's referencing such-and-such of the Insurance Act. Those forms presumably will have to be redone. Is the industry ready to respond to that? I assume it's the industry associations that would take the lead in communicating this out to all of the industry.

D. Leroy: When the Insurance Amendment Act comes into force they would have had to reprint the forms anyway, because we've moved things like the statutory conditions from — a number; I forget — 27.1 to 28.3 or something, that sort of change. That would have been required anyway, and that's why we're trying to do the revision now — so that it's consistently numbered from now on.

It would be difficult, once this act comes into force, with all the gaps in the point numbering, if they redid all their forms for that new act, for the amendments, and then we tried to revise it and renumber it. That would mean changing their forms twice instead of once, and that's why we're trying to get this into force for July 1, on the same date that the amendments come in.

C. Hansen (Chair): Does this wind up so that the act, going forward after July 1, will be referenced differently? Like, would this be the Insurance Act, revised 2012 — that kind of thing?

D. Leroy: It will be the Insurance Act, SBC 2012. I think the goal is that it will always have the statute revision at the top. We don't have RSBC, Revised Statutes of British Columbia, for 2012. It will just be given a number in the 2012 statutes, but printed at the end.

C. Hansen (Chair): That style that you just described, then, is actually a new precedent? This is the first time that this has been done.

B. Bennett: I think this is a marvellous idea. Now that I understand it, I think this is a great idea. It makes statutes easier to read, not just for the lawyers but for everyone else who goes to a statute to try to find something.

How big is your shop in the ministry, in terms of this particular project? Is it just one person, two people, or one part-time person?

J. Erasmus: Statute revision is corner-of-our-desks right now. When we do a full, general statute revision there is usually at least one person appointed full-time who does nothing but statute revision for three or four years. Then other lawyers will help on the project.

B. Bennett: What's your next public act? Have you identified one, or did you tell us that already?

J. Erasmus: We haven't told you. We have some internal candidates identified within the office. We have at least one act that a ministry has actively been requesting a statute revision for.

J. Erasmus: It's our view. Yes. Well, because UBCM has been asking for it, it's the Local Government Act. When the Community Charter was enacted, many provisions of the Local Government Act related to municipalities moved to the new act. The result was a lot of gaps and the old decimal numbers. But regional districts, which are an important level of local government, rely on cross-references to municipal provisions.

There wasn't a complete rewrite of the Local Government Act at that time, but regional districts have to go off and look at many, many different parts within the big Local Government Act to find all their authorities and responsibilities, and they'd like to see a revision of that. It's a huge act. The section numbering goes up over a thousand. It's a big project. It wouldn't be an easy corner-of-the-desk project.

But we have some smaller ones that, yes, are ones we've identified within the office. The criteria are significant public use and significant amendments that have been made, which leave it in a state where it could benefit the public by having a revision.

C. Hansen (Chair): And just to follow up on that, is there a public awareness that this process is starting? I guess I'm asking: is there any kind of open invitation to organizations to come forward with suggestions of candidates for this process?

J. Erasmus: We have wanted to do these for a number of years. It has been resource-dependent. This current project is because there has been the harmonization bill and a desire, really, to provide a clean act for industry and public use. We don't have resources at this point to volunteer to do many more projects. We live in hope that we will be back.

J. Brar: I just want to understand this. What are the steps you need to take to reach the stage where you start revising an act? How does it happen?

J. Erasmus: Legislative counsel will identify a candidate. We will contact the ministry that's responsible to advise them that we are looking to do this for them, because they need to participate. Their advising lawyer from the legal services branch will be involved. We will prepare what we call redline. Documents like this got called redline because, in the old days before computers, contract lawyers, between each other, would swap revisions of the contract back and forth using red ink, red pen. They were called redline to show the changes. We still call it redline.

We will prepare redline drafts for the ministry for their solicitor to look at. We will have at least two legislative counsel looking at it and a legislative editor reviewing it. And once it's settled, it will go through the process within the ministry so that there's approval by the deputy and the minister, and then we prepare it for bringing to committee.

D. Leroy: No. Initially a letter goes to the deputy from chief legislative counsel saying that we're hoping to do this, so that when he gets asked to approve it, he knows what it is.

J. Brar: How frequently does this take place? Every year? Or every five years? How frequent is this?

There are enough acts now that are in need. This would be the usual time frame, if you look at British Columbia's history, when we would start on a general revision — the whole thing. But we are hoping that with a limited revision authority, we can actually identify the ones that are in real need and deal with those one at a time, efficiently.

Seeing no further questions, there are two motions that we need to pass to complete this process. Murray happened to be the first member to show up in the meeting room, so I ask Murray if he would move the motions.

[Pursuant to section 4 of the Statute Revision Act (RSBC 1996 c. 440), the Committee approve the revision of the Insurance Act
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(RSBC 1996 c. 226) and recommend that it be brought into force and further, that the Committee authorize the Chair to endorse the Committee's approval on the title page of the Insurance Act Statute Revision.]

[The recommendation of the Committee be transmitted to the Lieutenant Governor and further, that the recommendation form the basis of the Committee's report to the House which the Chair shall deposit with the Clerk of the House and present to the House at the earliest opportunity.]

C. Hansen (Chair): Now I think there are some things that I need to sign. Or do we do that subsequently?

I think at this point we're going to take a recess. We're going to go in camera when we reconvene and before we come into the formal process to hear the presentation with regard to the conflict-of-interest act.

I would entertain a motion at this time to go in camera. Mike Farnworth, seconded by Murray Coell.

C. Hansen (Chair): Thank you very much, Dr. Smith, for joining us today. I appreciate your flying over for this discussion today.

I will throw the floor over to you. I'm sure members of the committee will have lots of good comments and questions at the conclusion of your presentation.

P. Smith: Thanks very much, first of all, for the invite. I get paid, part of my life, to sit and scratch my head, but I don't always get to do it in public. It's an opportunity to share some thoughts on some of this. I say my thanks for the invite from the Chair and from the members.

I had sent along only yesterday…. I know people are busy, so I don't know whether anyone had a chance to look at the longer statement of comments. I can take a moment or two, as suggested, and just reflect a little bit on what the gist of it is.

What I tried to do is something that I've worked on and thought about a little bit over a number of years, sometimes in conversation with various, over three, conflict commissioners. What I posed was that one way to unravel some of the thinking about reviewing the legislation was to look at it in terms of seven central elements. That's really what the brief does.

A couple of other comments in passing are that as an observer of B.C. politics and government, it seems to me that over the past 20-odd years the province has been pretty well served by the legislation and the legislation as amended. It seems to me that there are some central elements that are absolutely worth preserving.

I have a couple of thoughts on some things that might be added incrementally. I say incrementally because several of them reflect things that any of you as members, mostly long-serving members, of the House here will know from the conflict commissioner's annual reports, are reflected there as well.

The brief breaks out seven key elements. I can make just a quick comment on each and then let you have at the issue with me, if you like. The first is the question of definition. It seems to me that the timing of this legislation was just after the Sinclair Stevens affair in the federal government of Brian Mulroney. The commission of inquiry chaired by Justice Parker was reported in 1987.

I still think it's probably the best definition of conflict anywhere. It's used quite extensively. When I talk to other commissioners in other places, they're certainly aware of the distinctions that Justice Parker made.

The brief simply talks about the three central elements which are included in the current legislation here in British Columbia, which is why the argument I would make in terms of any recommendation was that it could be left entirely as it is, in definitional terms. It includes real conflict, and that's obviously important. That is relatively easier to define than some of the other aspects that the definition looks at.

It also includes — the B.C. legislation does — apparent conflicts of interest. Those are ones that there's a reasonable apprehension that a reasonably well-informed person could properly have that a conflict of interest exists. Bert Oliver used to tell me that that meant it had to be someone who read more than the Province. I guess I might be allowed to say that — that that would be a reasonably well-informed person. That was the kind of test he had in mind.

Also potential conflict. What Justice Parker says is that if there's a potential conflict and a public official, an elected official, foresees that there's the potential for a conflict, they must take steps to remove themselves from that potential, in one form or another, or a real conflict exists.

Those are the three definitions of Justice Parker. They're reflected in the B.C. legislation, and it seems to me that they're entirely adequate to the task at hand. There's a little bit of reflection on the rationales for why we need this legislation. We have some…. I think each of our conflict commissioners would reflect this — limited experience with situations of conflict. They are limited, but they are certainly sometimes are newsworthy when they occur.
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I just picked up two or three things that are reflected in both the reports of and statements by each of the conflict commissioners. For Ted Hughes, it seems to me that his emphasis would have been very much on the question of public trust and the question of the erosion of public trust where conflict occurs.

Bert Oliver would define his role — he certainly did to me on a number of occasions — as 90 percent priest and 10 percent policeman, which suggests a tradition that's been carried on by the current conflict commissioner, Paul Fraser, which is also that prevention is better than a cure. I think that's been a bellwether of the conflict commissioners, generally, through the 20-odd years that we've had this legislation. In terms of rationale, it seems to me that there's nothing that needs to be changed.

The third part of the brief talks a little bit about the various classifications. This I've stolen from — you may be talking to a colleague of mine, and many of you may know — John Langford, at the public admin school at UVic. He's written about this.

This next section is a straight steal from a book that he and Ken Kernaghan wrote, called The Responsible Public Servant. They were looking at it in bureaucratic terms rather than in terms of elected officials, but the same kind of principles apply. He gives a list, and I've just listed them there — from self-dealing and accepting benefits and influence peddling through the use of government property.

The important thing, I suppose, there — just a note; I don't think it would surprise anybody who sits around this committee — is that we've gone from kinds of black-and-white definitions of conflict, to shades of grey. Trying to get a handle on those shades of grey is more problematic is a simpler way to put it.

We've had black-and-white definitions of conflict back from the original Criminal Code of Canada. Sir John A. Macdonald, in 1870s, in the Pacific Scandal, fell afoul of the most obvious of those, which was around bribery and corruption in terms of the building of the transcontinental railway. It cost him his first term in office, although he did reappear again.

The latter two or three that are reflected in the list that Langford and Kernaghan talk about — and I just reflect on very briefly — are questions of outside employment, which is fairly obvious what it is. There's a bit of reflection in the brief on that. Post-employment is one that certainly is of some interest to members, and perhaps even more particularly to members who have served particularly recently as ministers.

The issue there is to try and find an appropriate balance between information garnered as a basis of being a minister and yet being able to find employment, given the sometimes tenuous nature of the life that you folks have all chosen in terms of being our representatives. But there's a little bit of discussion there about some of the questions around that that might inform it.

The last one is around personal conduct. The test there is perhaps, again, one of a reasonable person and whether activity might bring an institution into disrepute. I've thrown in a quick little example there to suggest some of the difficulties.

Two police officers, both doing something in uniform out of their job circumstances. One for the city of Vancouver was disciplined and dismissed because he appeared in a rock video with a group he performed with in his Vancouver police uniform, and it was thought to be not representative of the Vancouver police force. The police chief at the time was a country and western fan, so I don't know whether that had anything to do with it, but it's possible.

At the same time, the city of Ottawa was giving a commendation to a police officer who appeared and made money from time to time performing as a folksinger but also spending part of his time in his police uniform singing folk songs to children in Ottawa hospitals. So two police officers doing the same thing, more or less — different responses by different jurisdictions. It suggests that we've moved well beyond the black and white into the kind of grey area.

So there are a few things, I think, for the committee to mull and think about there in terms of whether we can find the right balance in terms of some of those latter things. Two or three other things and I'll stop.

On disclosure it seems to me that we've got a pretty good regime in the British Columbia legislation with regard to initial statements but also the requirement that if there is any meaningful change, that there be an upgrading of the information. I think that's an important component.

The legislation at various times, and other legislation if you look at it comparatively, doesn't always come to the same conclusion about who else might be included. Some refer to close family members. Some legislation refers to family members who live at home.

I have four kids. They're not so "kids" anymore. At the moment none of them are at home. By September I could have two at home, and they might bring appendages with them. You get the picture pretty quickly. You know, life's not a straight line anymore. So close family members and members living at home is a kind of relative thing, it seems to me. But I understand what the legislation and the language is trying to get at, which is that….

That's what Justice Parker talked about with regard to the Sinclair Stevens affair was that it's not simply a matter of identifying the interests and trying to guide members in terms of their behaviour with regard to potential conflict but also those near them.

Some of the legislation also talks about close associates. I guess one of the questions you might pose there is whether the committee and the legislation can create language that assists in that regard or whether some of that might best be left to the reasonably well-informed per-
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son in the person of the conflict commissioner himself or herself. Should they go there? But as I say, in terms of disclosure, it seems reasonably adequate as well.

The last two things that I looked at briefly were penalties. I've had some comment over the years about whether the level of fine was sufficient. It has always seemed to me that the fine was more symbolic than it was punitive, but beyond that….

The other penalties, like having your seat declared vacant, etc. It seems to me a pretty significant sanction on any member for a serious conflict, basically, most likely ending their political career. That seems to me adequate.

The one question you might reflect on is what happens in terms of conflict where a significant amount of financial gain is actually made. The legislation is a bit more silent with regard to that. Some legislation tries to get some statement of recompense to the public purse for what might have occurred with regard to the amounts that are involved, if it's a significant financial amount. I just pose that as well.

The last thing is — and I realize this is, in a sense, beyond perhaps what your brief is but not what I hope it will be in the end: who is covered? I know the current legislation refers to the members' conflict of interest. You're all members of the House. What I propose, and I'm not the first person to propose it at all…. It seems to me that this goes back, I think, to Ted Hughes and certainly through Messrs. Oliver and Fraser.

There are some other people that we might want to capture in that question of coverage around that. It would mean renaming the act, I presume, to something like the public sector ethics and conflict-of-interest act of B.C., which would still include members.

The first group that is identified there — and, as I say, the conflict commissioner has reflected on for years — is senior political staff. There is a small question, I suppose, about what senior political staff is. It certainly would include things like ministerial assistants, EAs perhaps. There's a question about dipping into, with this legislation, the senior ranks of the public service with regard to deputies and assistant deputies. There is some debate, if you look across different legislation, as to what they're trying to capture. They're trying to get that central political component as that.

The last thing I pose — and it's another stretch, I realize, beyond that — is one…. As I say, I've known all three of our conflict commissioners, and I've had some discussions with them over the years. They always make the point, and it's reflected quite often in their statistics and their annual reports: who are the kind of non-jurisdictional people that most often approach the office for advice? It's consistent. It's totally consistent in British Columbia. It is municipal elected officials.

That says a bunch of things. I think it says something about a desire on the part of officials and a concern and a care on the part of municipal officials to do the right thing, and a consistent request to find guidance. It seems to me from, again, my conversations with past commissioners, as their time has allowed with their other official duties…. They've taken the time to offer some advice of an informal nature, given their expertise, but it would seem to me that if you're talking about expanding the conflict-of-interest act from beyond simply members to include senior political staff, there's another element you might add.

For me, this has a little bit of history. Back in the 1990s I had an opportunity to reflect a little bit on some aspects of local government, and a colleague had made a recommendation that one of the ways you might deal with this was with the appointment of a deputy commissioner who would look after municipal officials in terms of the same kind of advice with a small number of staff to assist in that regard. There are certainly more municipal officials than there are Members of the Legislative Assembly.

But it seems to me an important gap. It's one that's continual in B.C., and it's one that is expressed and stated by municipal officials on an ongoing basis. I know this spring the Legislature passed legislation with regard to an auditor general for local government.

That was certainly about some views on the part of the government that broader kind of overview of municipal finance would be of benefit.

It seems to me that a canvass of municipal officials…. Certainly, the ones I talked to around the time thought that if they needed some provincial oversight, it might be better on the conflict side than it would have been with regard to the need for an auditor general. It seems to me that's entirely consistent with the thrust of that legislation as well.

I realize that's an addition to, perhaps, where the committee might want to end up, but it seemed to me that it's timely and warranted to look at some review, as the committee is doing. Given that I think a little bit about it, I appreciate the opportunity to share those thoughts with you today.

C. Hansen (Chair): Thank you very much for the presentation. Also, the submission — the way you've set it up is very helpful to us, because I think it really does bring focus to some of the very specific questions that we have before us.

The one question I have, though…. I wonder what thought you've given to it — that is, this issue of extending coverage to local government. I understand the argument, and I think that yes, it does….

But I'm not necessarily convinced that it should be done under an existing statute that deals primarily with
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provincial MLAs and, potentially, provincial staff, as opposed to a stand-alone piece of legislation or office that deals with municipal functions, for two reasons: (1) the sheer number of municipal officials in the province as compared to provincial officials; (2) the very nature of the fact that it's closer to the ground and therefore has more contact with the public on a day-to-day basis and more opportunity to actually say: "I think there's a conflict."

(3), and perhaps most important, is what they deal with, which is rezonings and land use. The relationship that exists in many communities between who's buying, what parcels of land are coming up, where the road's going and donations and all those kinds of things is in many ways, I think, a lot more potentially complex than at the provincial level, where there is already significant scrutiny and declaration.

I'm wondering what your thoughts are in terms of: "Okay. Yeah, it's a good idea, but a stand-alone piece of legislation, compared to, let's say, just extending the act." I could see that the broad act as it applies to us and then trying to apply it to local councillors is going to be even more challenging too. There are big differences between representing a town of 1,500 people — sometimes potential conflict is unavoidable — as opposed to, let's say, the city of Vancouver or Burnaby.

P. Smith: I would agree completely. It seems to me that, in fact, probably the best way to deal with it would be with a stand-alone piece of legislation.

It seems to me that this is currently business for the provincial Conflict of Interest Commissioner. All three of them have reflected on it. Each time they report annually to the Legislature, they remind you that it's their largest piece of non-jurisdictional business. So it's there already.

But I agree with you. I think there are enough differences that putting it there, I guess.… In my poor defence here, it would be that I wasn't invited to comment on that, and this was an opportunity to pose the issue.

I think the way that you posed it would be a more sensible way to get at it, but it seems to me that the experience of our current legislation for the province indicates we should.

J. Brar: Just to maybe add to what Mike said. I understand. As Harry says, it would be way more complex and difficult to implement something like that when we talk about the conflict-of-interest commissioner for local government.

My question to you is: is any other government in the country doing it or even considering doing something like that? Or is there any local government in the country that has its own conflict-of-interest office in the local government?

P. Smith: Some examples of the latter rather than the former. If you recall the…. I'm trying to think of the name of the commission on Toronto, on the sale of computers and a variety of things. There was a judge that chaired a commission. Toronto is probably as far advanced in terms of establishing an office to try and deal with this. So there are some.

It's early days, but for me, as I say, the particular catalyst for trying to pose it here for you to reflect on was that for the last 15 years B.C. conflict commissioners have said: "We're already doing this." So there's some need, but not a lot of jurisdictions have moved down the road, as far as setting up formal entities yet.

J. Brar: Keeping in mind the number of local governments and the councillors involved, I don't know whether the recommendation of the conflict commissioner will fit into that from a practical point of view. The capacity of that office to deal with the number of conflicts, the number of people involved in the province, in my view, will be way bigger than the number of complaints and concerns about the Members of Legislative Assembly, as Mike said earlier.

This is a community working very closely with the councillors on all those key issues, whether it's rezoning or land development and all those issues. So there's the potential for way more complaints than the complaints the conflict commissioner has here in the province.

P. Smith: Sure, some of this can be complaint-driven, but as I say, most of the experience in recent years for the current commissioners, the recent commissioners, has been municipal councillors coming of their own volition, asking for advice.

I understand what you're saying. I think it's not unreasonable to say that that would change with legislation, where such an office existed — that it could also be complaint-driven, that you would have more business.

You're absolutely right. There are many more. But it seems to me that if you go back to the question of the rationale, which is that this is about maintaining public trust, there's a gap here. It's worth, I think, legislators reflecting on whether it's something that they might be able to think through in a way that is helpful to do.

H. Lali (Deputy Chair): I totally understand the comments that you have made about municipal officials. I think you made one comment that perhaps the extension of the conflict-of-interest for municipal or regional district officials might have looked after some of the stuff that the AGLG is doing.

There's one other area that, obviously, provincial funds are disbursed to. It's the school boards. There's a fair bit of money involved in that in terms of contracts, procurement. Sometimes, obviously, when they're looking for a new property, if they're going to be building a new school, often there are deals made between municipalities and
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school boards on a number of items as well.

What are your thoughts in terms of school districts and school boards with a view to this conflict-of-interest legislation?

P. Smith: If the province were to go in this direction, I think it should include all local elected officials. That would include school boards. I agree with you. We have a pretty unregulated local government election finance regime in British Columbia, so the potential for conflict from people who support elections…. The issues that you've identified, that several members have identified, as being central can bump into each other, it seems to me, on a pretty regular basis with regard to property or to development or whatever.

I would say that if you were going to move in this direction or even propose for subsequent government action a separate piece of legislation, it should include all local elected officials.

M. Coell: Thank you, Dr. Smith, for your presence here today. I'd just like to get your opinion or your thoughts on…. I'll try and frame it.

In B.C. and in Canada the political system has evolved over hundreds of years and the party system has too — how parties are elected, fundraising-wise, and that sort of thing. We're elected as MLAs or individuals, but we're all, for the most part, part of parties that raise funds and use that for their elections.

I just wonder whether you see any potential areas in there that we should be looking at in our deliberations on this.

P. Smith: With regard to local government, absolutely, although that's a different question than you posed. I realize you're talking more about provincial and senior governments with regard to parties, though we have some local political parties.

We have legislation. It applies to all of you in terms of what you can raise, what you can spend during election periods. It always seemed to me a source of some wonderment that legislators who live under that regime and understand the value of that regime — and sometimes the frustrations of that regime — never got around to thinking about what that would mean for local officials. As I say, it's a pretty underregulated situation with regard to local officials.

You could make arguments, and they're made continually…. Mr. Harper's decision to end the public funding of political parties has been the subject of some debate. The Lortie committee, which looked at the whole issue probably most comprehensively in the last 20 years, made a couple of simple points. One is that parties are central institutions in our democracy, so they deserve to be supported and fostered and encouraged — which is a little different than the view of the current Prime Minister.

This is something which ebbs and flows a little bit. But as I say, with regard to the question of local governments, those regulations don't exist. There was some effort by the member for Kootenay East and the committee that he chaired to move some of that debate along, but we're still where we were for the most part.

J. Kwan: Thank you very much for the presentation. I'm wondering: what are your thoughts on applying the rules of the conflict-of-interest act to appointments, such as to boards and commissions and so on, within government?

P. Smith: The short answer would be: yes, there is some value in doing that. I guess it really relates to what you would define as senior political staff, people that serve at pleasure — whether they are, as part of the government of the day, doing public business.

At this point the regulation is restricted to each of you as members. It doesn't include anything beyond that. I guess part of what I'm throwing out here today, but also commissioners have said, is that it's worth looking at expanding this coverage.

I take the point about the municipal being a whole separate question, but there are other people that probably should be captured. So what you've posed…. That's worthy of some consideration for the most senior people, if you're going to try and capture senior political staff, which I think is the term the conflict commissioner has used.

B. Bennett: I'm mostly interested in the post-employment section of your paper. I want to make it clear to my friends on the other side that there's no specific personal reason for that.

I'll reveal my own personal bias on this. This one has always bothered me because I can't envision someone going out into the private sector, willingly or unwillingly, after having been a cabinet minister.

When you first go into politics, I think you're probably under the delusion that a political career is going to increase your attractiveness to the private sector. But from what I can see, there are very few examples of that. If you happen to be Premier or Finance Minister, there may be some opportunities after, on boards and so forth. But generally speaking, it doesn't really enhance your opportunities in the private sector that much.

So if you're talking about a youngish person, man or woman — not somebody as old as me but somebody
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that's, you know, 40, 45, 50, that sort of thing…. If they really take a hard look at this before they decide whether they want to be in politics or not…. For somebody that's marketable, that has a decent set of skills and education and so forth, I think it would have a bearing on whether they would choose to do this or not.

You have a removed, academic perspective on this, so I'm curious to know how important you think that this particular piece is in terms of the overall conflict-of-interest file. Also, I have a specific question for you to consider, too, as part of that. If I decided not to run — I am running, but if I decided not to run — and decided I wanted to go to work as a college teacher teaching political science or government or something like that, would I not have a conflict of interest because I was using everything I had learned as a cabinet minister to teach?

P. Smith: There's not a lot of hiring in universities at the moment. But that's a separate…. That's not an answer to your question.

You're at one of the problem areas. It's when we move from the black and white to the grey, and this is into the grey area. It seems to me the intention is correct. The intention is that people shouldn't be able to use insider information, in effect, that they've gained perhaps from being a minister. So you were Minister of Mines, and now you're going to be hired the week after you've been in office for a leading mining company. It's the nexus between the recent experience that you might have had or access to information that you might have had as a member or as a minister that's at the centre of this, it would seem to me.

I agree with you. I have the greatest respect for people that offer themselves for public office. I think it's an absolutely essential but uncertain future that you all picked, to represent us. But it seems to me that this is one of the questions of balance. I guess it's a matter of whether the balance is one that you can try and contain within legislation or that you might leave to some interpretation by a commissioner offering advice.

B. Bennett: If I can follow up on what you've just said. The federal legislation — in your paper, anyways — indicates that you have to have taken improper advantage from your previous office. And then provincially, here in B.C., you must not take advantage of information and influence acquired while you held office.

What you just used as an example — a Mines Minister using information that only the Mines Minister and senior staff could possibly have — is a whole lot different than taking advantage of information and influence acquired. I mean, what's influence? You have one meeting with one business, one company, at some point when you're minister, and then you go and you work in a field where that company is working in the same field. Is that a conflict of interest?

P. Smith: I accept the premise that it's not unreasonable to assume that if people have experience, it will very often relate to what their backgrounds are and where they might indeed find gainful employment in a post-electoral situation. It's difficult.

I think the test here is perhaps better reflected in the language of the federal legislation. So then, that may be something for you to reflect on. I mean, your example of going from the B.C. Legislature to teaching with me in political science would be perfectly fine. We've hired a few ex-politicians at SFU to have our students have some advantage of that exchange, but the kind of information that is shared in those settings is quite different than, I think, what this is trying to capture.

I guess the point would be that this is here for a reason, it seems to me, in virtually all legislation now. It comes up in the context of newer lobbying legislation as well. There's some teething, I think, about trying to find what the right balance is, but the difficulty in finding the right balance, it seems to me, is not to suggest that it's not an important thing to try and think about.

I take your point. The two examples I gave are quite different, and the language gets at it. That may be something for the review to try and get at. It seems to me it's not trying to say that people who have served the public in elected office shouldn't be able to be employed for one or two years afterwards. It relates mostly to the nature of the information that they might have and how they might be able to use that and the potential for conflict to emerge out of that.

That goes back to the definition again. Is there a potential for conflict? If there is, you have to rid yourself of the opportunity. It's not an easy answer.

C. Hansen (Chair): I wanted to come back to this issue about extending the scope potentially to political staff in the minister's office and deputy ministers, assistant deputy ministers.

I wanted to ask about the whole concept in our parliamentary democracy of ministerial responsibility, which I think is something that has been around, obviously, for centuries since, I guess, the birth of parliament. But it has evolved and changed. I think it's probably something that's never really been defined in a specific way, but it almost gets defined each time there's an issue that hits the front page of the newspaper.

In the context of ministerial staff, to what extent should their actions be governed by something that's put in legislation and to what extent should it be covered by ministerial responsibility, taking responsibility for those who are acting on behalf of the minister?

The second part of my question is around…. Let me put it this way. I know in employment law, I believe there is actually some jurisprudence out there that says that
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when an employer tries to restrict a sales rep in an organization, for example, from leaving that company and working for another company, to restrict them in going after clients that were of the previous company….

I believe the jurisprudence actually says that it would impinge on that individual's right to earn a living if any of these non-compete clauses were, in fact, valid. I understand that even though they get written into employment contracts, they in fact don't stand up in court in many cases. I don't pretend to be an expert on this. It's just sort of something I've picked up in passing.

But in that context, how should we look at the question of extending conflict rules to political staff in the minister's office from those two perspectives?

P. Smith: If I could start with your point about ministerial responsibility, you're right that it's not an ever-changing phenomenon. I think there's probably a pretty straightforward understanding of what ministerial responsibility means. But its application over time and across jurisdictions suggests that it's not something that's nailed down very well.

I can think of lots of examples. John Stuart Mill in the 1860s, writing about representative government, said it fairly simply, which is that the minister should take credit for all that goes well and the blame for all that goes ill.

We have good examples of that where, clearly, circumstances exist where a minister could reasonably say: "I didn't know what was going on." What comes to mind is something like John Fraser and tainted tuna. Mr. Fraser, in those circumstances, did what people would consider the right thing, in terms of ministerial responsibility, and resigned his Fisheries Ministry portfolio in the federal government.

We have later, in the Mulroney government, a couple of ministers, with regard to an immigration matter, naming a senior bureaucrat, saying: "He was responsible. It wasn't the two of us." It was another example of ministerial responsibility where they were prepared to take the credit but not to take the blame. That's all within kind of living memory. So that's entirely….

To simply assume that the issue of ministerial responsibility will capture all of that, as opposed to trying to put it into some language in legislative terms…. It would weigh more in the direction of: you need some legislation here.

There's something I used to refer to as the Dalton Camp rule, where he says that if you have to have this kind of legislation to tell public officials how to behave, it's already too late. It would be the way Dalton Camp would have described it. But our experience suggests that from time to time people do fail to make the right determinations with regard to conflict, and so that's why we've developed these kinds of legislation, it seems to me.

C. Hansen (Chair): It was around the ability of governments to put in contractual obligations, I guess, that impinge on one's right to earn a living in a future employment.

C. Hansen (Chair): I do recall — I can't remember where this was; it may have been out of the independent panel on MLA compensation — somewhere in the last ten years a discussion around severance for MLAs when they cease to be an MLA. One of the rationales was — in the case of ministers in particular and possibly, by extension, all MLAs — this restriction on what they can do after they cease to hold office.

I guess if we were to extend it to others, like political staff or senior deputies, would government also be obligated to look at some kinds of compensatory provisions to counter the fact that their employment opportunities are being restricted by this?

P. Smith: I think you're right. To the extent that we have those compensations for people at the end of political careers to help them as they're trying to transition back into private life, it suggests that this is an ongoing consideration. Presumably, if you're going to apply the same kinds of principles to senior political staff — and I guess one of the questions might be: would the legislation apply in exactly the same way to senior staff as it does to members, perhaps? — then that would make a difference. But if you were going to…. The logic would be, then, that if you're providing compensation for the one with regard to those restrictions, you would presumably need to have some kind of, as you say, compensatory regime for others.

That may get back to, again, the member for Kootenay East's point of view about what you are trying to control here. If it's a narrower set of things, then maybe the restrictions with regard to post-employment only apply in narrow circumstances and not broadly. So as soon as you stop being an MLA, you can't do anything for two years. I mean, that doesn't make much sense to anybody, I don't think.

H. Lali (Deputy Chair): My comments and questions are along the same lines, following the member for Kootenay East. As somebody who has been in that position, as a former cabinet minister and then gone out for four years — and the member for Port Coquitlam, the same thing — when you're out there looking for work, there's not much work available out there.

Even if you had some really good secret information that you could try to pass off to try to get employment, regardless of whether you're on one side of the House or
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the other, there aren't any opportunities out there — I speak from personal experience — or very little anyway. So there's not much you could actually even use to try to get employment in that kind of a field.

There's that two-year limitation post-employment. I just want to ask you what your thoughts are on that. Perhaps that two years is too long in post-employment. Maybe it should be reduced to about a year's time.

P. Smith: It's interesting. If you listen to some of the people that…. Our lobbying legislation is more recent, and there's an attempt with some of the lobbying legislation, not just in British Columbia, to try and get at some of this question of distance and closeness. Some of the commissioners across the country are having some of the same kind of debates about their new legislation.

Again, I think the key thing is to keep in mind what it is that you're trying to control for. It's not a person who spent some time in public office, perhaps as a minister, getting a teaching job and sharing that experience with students. It's about insider information. It's really insider trading, and we try and control that with regard to things like stock markets. In the same way, it seems to me, there's an attempt to try and control it with regard to political office.

H. Lali (Deputy Chair): The question is about the length of time from two years to one year.

P. Smith: Yeah. I would be inclined to agree. It seems to me that if there's a rethinking going on, it's actually towards decreasing that, reflecting the reality of the uncertain nature of the jobs you've chosen to serve in as a part of that. People have to be able to sustain themselves, their families.

As I said earlier, part of my respect for folks like yourself who do this is that you give up a lot in terms of families and careers to serve us all. It's incumbent on the whole society to come to some kind of consensus on what would be reasonable.

But it gets back to the central point, I guess, that I was making about some of these things. The black-and-white stuff, bribery and corruption, is not terribly complicated. It's covered by the Criminal Code. When we get into these grey areas, it's more problematic.

Part of the question is how much you want to build some of the guidelines on how to deal with this in the legislation. This would be a place…. If you're going to deal with post-employment and you're going to have some restrictions on it, I think you'd want it in the legislation rather than left to some discretion.

The other thing I'm thinking about, also, is that the reduction from two to one year…. Especially when a different political party comes into office, they bring in a different philosophy and a different agenda, different priorities, and most of what's on the table for an outgoing government of one shade is thrown off the table by the incoming government because of that philosophy.

Much of that information that a minister might have, which might be perceived as useful if they want to try to gain financially, is no longer there because the new government has different priorities and different focuses than the outgoing one.

In that kind of a reality it would make more sense that the outgoing minister from party A would have very little influence or insider knowledge because it's not on the agenda anymore for the government of party B. What are your thoughts on that?

P. Smith: What you're saying is that there's a different circumstance when a government changes. I think that is true.

H. Lali (Deputy Chair): And you no longer have that inside track that you would if you just stepped aside but your party continued on in government and you still have friends at the cabinet table that would carry out a particular agenda that's already there. You would probably have a little more influence with those ministers than you would with ministers from a political party, a government, of a different shade.

P. Smith: I would agree. I'll make two points. I would agree that there's much less opportunity, it seems to me, for insider information to be indeed insider information any longer. But my sense of government is that there is also enough continuity and that there are matters that governments think about because they transcend particular parties becoming new governments, that are ongoing, that may be information that is of a sensitive and potentially conflictual nature.

Again, it gets back to this question of: what is it you're trying to control, and how do you find the proper balance? What the questions suggest you're posing are the right ones in terms of…. This is not a simple kind of snap-of-the-finger answer. But it doesn't mean you shouldn't wrestle with it.

I guess that would be what I would say in final response. Just because it's not easy to come up with a sensible answer doesn't mean it doesn't bear some reflection.

There are circumstances where ex-ministers might indeed be in circumstances where they have inside information that could be used in particular ways by particular interests, if they're hirable immediately following office. The circumstance you're suggesting is one where that is mitigated by the change of government and potentially a change in direction.
[ Page 42 ]

P. Smith: I've lived in British Columbia for a fair while, and I know that there are some differences between one side and the other. But it seems to me it's not all or nothing. There are things that continue because they make sense to all sides, irrespective of politics.

I guess in the end there could be circumstances where an ex-minister who's no longer in a government because the government is no longer in office might still be privy to information that could be seen as potentially conflicting.

H. Lali (Deputy Chair): My final question is regarding parliamentary secretaries. They're all bound by the same two-year rule. The ministerial assistant to the minister knows exponentially more than the parliamentary secretary does. The parliamentary secretaries often are given a small task to do by the minister.

H. Lali (Deputy Chair): Yeah. It's something to run off with or a little…. Go find conference to go to. The minister can't go. The parliamentary secretary attends on their behalf. It's really a minor role. It's really a role…. I can best describe it as the role of a powder monkey. That's basically what it boils down to. Actually, let me correct that. The powder monkey actually has more explosive powder at their disposal, divvying it out to the various guns, than a parliamentary secretary.

There's no power, but they're bound by the same two-year rule, which I think is ludicrous, to be quite honest. Maybe six months, if anything. But if there's a change in government from one party to another, it ought to be zero for parliamentary secretaries.

P. Smith: Again, potentially. Given your rendition of the role of parliamentary secretaries, I'm not sure all parliamentary secretaries would agree that that would be how they perceive their roles, or even ministers might say, although many….

H. Lali (Deputy Chair): I'm sure that if you found one, that would be the only one exception to that. They know, having been there myself as a parliamentary secretary.

H. Lali (Deputy Chair): Not at the cabinet table. Not privy to any of the discussions in the cabinet. Like I said, it's the ministerial assistant who's aware of most everything that's going to be discussed at cabinet.

P. Smith: Which I think is why the conflict commissioners have suggested over the years that you as legislators, when you might be looking at review of the act, look at including MAs and others of that sort — exactly.

It's all really trying to get at: what is this nexus? It's an informational point that you're trying to control for. It seems to me, again, across jurisdictions it would vary a fair bit as to what it is. The attempt is to try and control the use of this insider information.

H. Lali (Deputy Chair): And I understand that. The final comment. It's not a question. When the cabinet portfolio comes to the minister's desk, the ministerial assistant actually sees it even before the cabinet minister does, whereas a parliamentary secretary has absolutely no clue what is going to be or what is not going to be discussed at the cabinet table, leave alone seeing the actual documents or some of the documents that are going to be discussed and are actually seen by the ministerial assistant.

C. Hansen (Chair): Okay, seeing no more hands, thank you very much, Dr. Smith, for your very thoughtful submission and your words of wisdom today. I think it's helped us immensely in the task that we have before us.

P. Smith: Thanks again for the invite, and my best wishes for your deliberations.

C. Hansen (Chair): Thank you very much. With that, I will entertain a motion to adjourn.

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Chair:	* Colin Hansen (Vancouver-Quilchena BC Liberal)
Deputy Chair:	* Harry Lali (Fraser-Nicola NDP)
Members:	Donna Barnett (Cariboo-Chilcotin BC Liberal)
	* Bill Bennett (Kootenay East BC Liberal)
	* Jagrup Brar (Surrey-Fleetwood NDP)
	* Murray Coell (Saanich North and the Islands BC Liberal)
	* Mike Farnworth (Port Coquitlam NDP)
	Randy Hawes (Abbotsford-Mission BC Liberal)
	* Jenny Wai Ching Kwan (Vancouver–Mount Pleasant NDP)
	* Norm Letnick (Kelowna–Lake Country BC Liberal)
	* denotes member present
Clerk:	Susan Sourial
Committee Staff:	Byron Plant (Committee Research Analyst)

Witnesses:	Janet Erasmus (Ministry of Justice)
	Dawn Leroy (Ministry of Justice)
	Dr. Patrick Smith (Simon Fraser University)

REPORT OF PROCEEDINGS (Hansard)

SELECT STANDING COMMITTEE ON PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS

REPORT OF PROCEEDINGS
(Hansard)

SELECT STANDING COMMITTEE ON
PARLIAMENTARY REFORM, ETHICAL CONDUCT, STANDING ORDERS AND PRIVATE BILLS