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Democracy Watch in B.C. Court of Appeal challenging ruling that Conflict of Interest Commissioner’s decision to excuse B.C. Premier Christy Clark’s $50,000 salary and “cash-for-access” events can’t be challenged in court

Ruling meant complaints to Conflicts Commissioner by members of the public about MLAs are ineffective, and Commissioner’s rulings are not binding

Wednesday, October 18, 2017

OTTAWA – Today, Democracy Watch is in the B.C. Court of Appeal challenging B.C. Supreme Court Justice Affleck’s ruling last January that no court challenges are allowed of B.C. Conflict of Interest Commissioner Paul Fraser’s decisions because they are unreviewable opinions with no direct legal effect limiting the Premier’s conflicts of interest. The notice of appeal to the B.C. Court of Appeal can be seen here.

The decision under appeal means that members of the public who make a complaint to the Commissioner about the Premier’s conflicts of interest are not entitled to a remedy, and are not even entitled to any assurance that the Commissioner himself has not been compromised by his own conflict of interest.

The ruling also stopped Democracy Watch’s court case filed last October challenging the Commissioner’s decisions last May and August that Premier Christy Clark’s high-priced, exclusive fundraising events don’t create conflicts of interest for her, and that the donations made at the events do not benefit her personally. Democracy Watch also challenged the Commissioner’s own conflict of interest in ruling on the situation given his son works for Premier Clark’s Cabinet.

“The court unfortunately decided that no one can challenge Commissioner Fraser’s unethical decision that it is legal and ethical for Premier Clark and Liberal Cabinet ministers to sell access to themselves at high-priced, invite-only secretive fundraising events, and that the events don’t create any conflicts of interest,” said Duff Conacher, Co-founder of Democracy Watch. “Commissioner Fraser stepped aside from ruling on a situation involving Premier Clark in 2012 because of his son’s work with the B.C. Liberals, and he should have stepped aside again this time, and the court did not even consider this issue. For all these reasons, Democracy Watch is appealing the ruling.”

Jason Gratl of the law firm Gratl and Company, who is counsel for the case and is representing Democracy Watch in the B.C. Court of Appeal today, said: “We say simply that it is an error to find that conflicts of members of the Executive Council, including the Premier, are not always and not in this case protected by legislative privilege”.

Commissioner Fraser will have until late May to file his response to Democracy Watch’s appeal.

According to media reports, Premier Clark has hosted or attended several small, invitation-only fundraising events for the B.C. Liberals with ticket prices ranging from $2,000 to $20,000, and also attended an event in her riding association sponsored for $2,500 each by four sponsors. Premier Clark received an annual salary from the B.C. Liberals for, in part, fundraising activities over the past few years, and that is part of the reason she is in a conflict of interest.

The B.C. Members’ Conflict of Interest Act prohibits the Premier and all MLAs from exercising their official powers or performing any official duties or functions if they have an opportunity to further their private interest or if there is a reasonable perception that their private interest affects their actions or decisions (sections 2 and 3). It also prohibits them from receiving any gift or personal benefit directly or indirectly connected to their position (section 7).

Democracy Watch, which filed a complaint with Commissioner Fraser about the Premier’s fundraising events last March, takes the position that Premier Clark benefited personally and was in a conflict of interest when attending the events because she receives some of the money raised as her salary from the B.C. Liberal Party. Democracy Watch’s position is also that the events created ongoing conflicts of interest for Premier Clark that prohibit her from making decisions that affect any company or organization that had a representative at any of the events.

Commissioner Fraser ruled on May 4 and August 9, 2016 that the donations made at the events did not benefit Premier Clark personally, and did not amount to a private interest that put her in a conflict of interest. He essentially refused to rule on whether the donations created ongoing conflicts of interest for Premier Clark when she is making policy decisions that affect the donors – he didn’t even investigate to find out who attended the events.

Democracy Watch’s case also asked the court to rule that Commissioner Fraser should not have ruled on the complaints filed about the events because he was in a conflict of interest given that his son works as a deputy minister for the B.C. Liberal Cabinet. In 2012, Commissioner Fraser stepped aside and didn’t rule on a complaint filed about Premier Clark because of his son’s connection to the B.C. Liberals. Democracy Watch wanted the court to order a reexamination of the complaints by another person who is fully independent of all B.C. political parties. Justice Affleck did not consider this issue in his ruling.

“Democracy Watch’s position is that big donations made at private fundraising events where the politician is essentially selling access to themselves are a clear violation of the conflict-of-interest law, and we hope the B.C. Court of Appeal will agree and overrule Commissioner Fraser’s decision that the donations didn’t benefit Premier Clark or put her in a conflict of interest,” said Conacher. “Commissioner Fraser stepped aside from ruling on a situation involving Premier Clark in 2012 because of his son’s work with the B.C. Liberals, and he should have stepped aside again this time. Commissioner Fraser’s apparent conflict of interest and the legal errors in his ruling give the appeal court many reasons to reject his ruling on Premier Clark’s fundraising events.”

Democracy Watch and the nation-wide Government Ethics Coalition also called on B.C.’s political parties to change the provincial Conflict of Interest Act to make the Commissioner’s rulings clearly binding on politicians, and also to allow anyone to appeal to the courts for a review of any decision by the Commissioner, including about the Commissioner’s conflicts of interest.

“It is dangerously undemocratic for B.C. to have an ethics law that politicians can ignore, and an ethics commissioner who is an unaccountable czar, and so B.C.’s political ethics law must be changed to ensure the commissioner’s rulings are binding and that court challenges of the commissioner’s rulings and the commissioner’s conflicts of interest are allowed,” said Conacher.

Democracy Watch and the nation-wide Money in Politics Coalition also called on the B.C. government to make the same world-leading changes to the province’s political donation system (including at the municipal level) as Quebec made in 2013 when it lowered its individual donation limit to $100 annually to each party, with an additional $100 allowed to be donated to an independent candidate, and required donations to be verified by Elections Quebec before being transferred to parties and candidates.

Democracy Watch detailed in a September 18th news release how inadequate the B.C. NDP’s proposed changes in Bill 3 are, and what key changes are needed to stop cash for access and the unethical influence of big money donations in B.C. politics. More than 6,000 B.C. voters have called for these changes through Democracy Watch’s petition.

“The only way to stop the unethical and undemocratic influence of big money in B.C. politics is to stop big money donations,” said Conacher. “Any political party that refuses to support key changes to the B.C. political finance system changes is essentially admitting they are up for sale and that they approve of the unethical and undemocratic best-government-money-can-buy approach to politics.”

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Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
[email protected]

Jason Gratl, Gratl and Company, Tel: 604-694-1919

Democracy Watch’s Government Ethics Campaign and Money in Politics Campaign