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Court Won’t Overturn Conflict Commissioner’s Ruling on Premier’s Fundraising

Democracy Watch, which took the matter to court, may appeal.

By Andrew MacLeod 25 Jan 2017 | TheTyee.ca

Andrew MacLeod is The Tyee’s Legislative Bureau Chief in Victoria and the author of A Better Place on Earth: The Search for Fairness in Super Unequal British Columbia (Harbour Publishing, 2015). Find him on Twitter or reach him here.

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Duff Conacher of Democracy Watch on today’s ruling: ‘The ruling means the commissioner and the legislature are essentially unaccountable for their decisions about whether someone has violated the ethics law.’

A Supreme Court of British Columbia judge has ruled that the court lacks the jurisdiction to quash the B.C. conflict commissioner’s decisions to clear Premier Christy Clark on conflict of interest complaints.

Duff Conacher, co-founder of the advocacy group Democracy Watch that took the matter to court, said in a phone interview that the organization is considering appealing the Jan. 25 ruling.

“The ruling means the commissioner and the legislature are essentially unaccountable for their decisions about whether someone has violated the ethics law,” Conacher said.

“You should always be able to go to the courts,” he said. “You don’t want to have an ethics czar who’s unaccountable to appeals to the court, especially one whose son works for the ruling party cabinet.”

Democracy Watch wanted the court to send Commissioner Paul Fraser’s decisions regarding Clark to a substitute decision maker.

Fraser had ruled in a May 2016 decision and an August 2016 addendum that Clark didn’t contravene the Conflict of Interest Act by receiving $50,000 annually from the BC Liberals while fundraising at exclusive party events where attendees paid as much as $20,000.

There was a “reasonable apprehension of bias” regarding Fraser’s decision, Democracy Watch said in the Oct. 25 petition to the court, since his son “John Paul Fraser has personal ties to the premier and is a senior member in the BC Liberal Party” who works for the government as the deputy minister for government communications and public engagement.

Also, in 2012 commissioner Fraser recused himself from a complaint against Clark that former Liberal MLA John van Dongen made, the petition said.

“The Commissioner’s admission in 2012 that there was sufficient perception of bias to recuse himself from ruling on a complaint concerning the premier is inconsistent with the commissioner’s refusal to recuse himself from ruling on the complaints made in 2016 by Mr. Eby and Democracy Watch.”

Lawyers for Fraser — John Hunter and Trevor Bant — filed a six-page response on Nov. 28 that argued the case should be dismissed on various grounds, including that the commissioner’s opinions are “protected by legislative privilege and immune from judicial review.”

Today’s decision ruled against Democracy Watch. “The petitioner’s argument has a superficial plausibility, but I cannot agree with it,” it said. “There is an abundance of high authority against the petitioner’s position on jurisdiction. It is for the legislature to consider the conduct of its officers, when they are performing their assigned role, not the courts.”

The commissioner’s powers are limited to conducting an inquiry, arriving at an opinion, and making a recommendation to the legislative assembly, the ruling said.

“It is then for the legislature, not the commissioner, if it chooses to do so to exercise discipline authority over its members. An opinion of the commissioner has no legal consequence unless and until the legislature acts on it.”

The ruling, which Democracy Watch has 30 days to appeal, suggests members of the public concerned about provincial politicians who may be in conflicts of interest should go straight to the courts rather than complaining to the commissioner, Conacher said.

If the court is right in how it’s interpreting the law, it shows there’s a need to overhaul “the whole government ethics law,” he added.

Conacher said the province’s political parties should rewrite the Conflict of Interest Act so that it’s clear the commissioner’s rulings are binding on politicians and to allow anyone to appeal any decision the commissioner makes to the courts.

Premier Clark last week announced she would no longer take the stipend from the party since it had become a distraction, but has said the party will make no changes to how it raises money.  [Tyee]

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