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Modernizing the Municipal Council Conflict of Interest Act: Accountability, Enforcement & Oversight

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Modernizing the Municipal Council Conflict of Interest Act: Accountability, Enforcement & Oversight MODERNIZING THE MUNICIPAL COUNCIL CONFLICT OF INTEREST ACT: ACCOUNTABILITY, ENFORCEMENT & OVERSIGHT Final Report January 2016 Modernizing The Municipal Council Conflict of Interest Act i MODERNIZING THE MUNICIPAL COUNCIL CONFLICT OF INTEREST ACT: ACCOUNTABILITY, ENFORCEMENT & OVERSIGHT Report #132 January 2016 Modernizing The Municipal Council Conflict of Interest Act i Library and Archives Canada Cataloguing in Publication Manitoba Law Reform Commission Modernizing The Municipal Council Conflict of Interest Act: Accountability, Enforcement & Oversight (Report ; 132) Cover title. Includes bibliographical references. IBSN 978-0-7711-1574-5 The Commission’s Reports are available electronically at www.manitobalawreform.ca. Modernizing The Municipal Council Conflict of Interest Act ii The Manitoba Law Reform Commission was established by The Law Reform Commission Act in 1970 and began functioning in 1971. Commissioners: Cameron Harvey, Q.C., President Jacqueline Collins Myrna Phillips Michelle Gallant Hon. Madam Justice Lori T. Spivak Sacha Paul Legal Counsel: Elizabeth McCandless Jennifer Bird The Commission offices are located at 432–405 Broadway, Winnipeg, MB R3C 3L6. Tel: (204) 945-2896 Email: [email protected] Fax: (204) 948-2184 Website: http://manitobalawreform.ca The Manitoba Law Reform Commission is funded through grants from: Modernizing The Municipal Council Conflict of Interest Act iii ACKNOWLEDGMENTS This project for law reform was suggested by the Honourable Mr. Gerald O. Jewers, former Commissioner of the Manitoba Law Reform Commission. This report was prepared by Elizabeth McCandless, director/legal counsel, with input from Jennifer Bird, legal counsel, and Paul McCulloch, legal intern, University of Manitoba, Faculty of Law. The Manitoba Law Reform Commission is grateful to those who have generously donated their time, expertise and practical suggestions to this project: Laurie Davidson and Lynne Nesbitt, Manitoba Municipal Government; Ron Perozzo, former Conflict of Interest Commissioner for the Legislative Assembly of Manitoba; Mel Holley, former Manitoba Ombudsman; Joe Masi, Denys Volkov, and Nick Krawetz, Association of Manitoba Municipalities; Robert Tyler, Barrister & Solicitor, Municipal Law Section, Manitoba Bar Association; Mike McCandless and Greg Tramley, Barristers & Solicitors; Carolyn Duhamel, Manitoba School Board Association; Valerie Jepson, Integrity Commissioner, City of Toronto; Michael Jack, Richard Kachur, Marc Lemoine and Bryan Mansky, City of Winnipeg; David Matas, Barrister & Solicitor; Jennifer Franks, Ontario Ministry of Municipal Affairs and Housing’s Local Government Policy Branch; George Rust-d’Eye, Barrister & Solicitor and Integrity Commissioner/Lobbyist Registrar for the City of Hamilton; and with special thanks to Gregory J. Levine, Barrister & Solicitor and Integrity Commissioner for the City of Kitchener, the City of Waterloo, the City of Welland, the Municipality of Lambton Shores, and the County of Brant. The views expressed in this report are those of the Manitoba Law Reform Commission and do not necessarily represent the views of those individuals who have so generously assisted the Commission in this project. Modernizing The Municipal Council Conflict of Interest Act iv Explanatory Note The Manitoba Law Reform Commission’s usual practice in preparing reports is to first release a Consultation Report, solicit and receive feedback from interested organizations and members of the public, and then incorporate this feedback into a Final Report. In the case of Final Report #132, the Commission has chosen not to release a Consultation Report, due to indications that the Manitoba Legislature is planning to make changes to municipal conflict of interest legislation in the near future. The Commission felt it was important for its report to receive consideration by the Legislature and the public before any amendments to The Municipal Council Conflict of Interest Act or related acts of the Legislature are introduced. Modernizing The Municipal Council Conflict of Interest Act v TABLE OF CONTENTS EXECUTIVE SUMMARY/RÉSUMÉ ................................................................................ 1 CHAPTER 1: INTRODUCTION ...................................................................................... 6 CHAPTER 2: BACKGROUND ....................................................................................... 9 A. Overview of the Municipal Conflict of Interest Legislative Regime in Manitoba .... 9 a) Municipal Council Conflict of Interest Act........................................................ 10 b) Related Acts ................................................................................................... 15 (i) The Municipal Act......................................................................................15 (ii) The City of Winnipeg Charter Act.............................................................16 (iii) Ombudsman Act......................................................................................17 (iv) The Auditor General Act..........................................................................19 (v) Criminal Code...........................................................................................20 B. Other Jurisdictions ............................................................................................. 20 a) Municipal Conflict of Interest Legislation......................................................... 20 (i) Ontario.......................................................................................................24 (ii) Alberta......................................................................................................28 (ii) Municipal Codes of Conduct.....................................................................28 b) Provincial and Territorial Conflict of Interest Legislation ................................. 33 (i) Manitoba's Provincial Conflict of Interest Legislation.................................34 c) Federal Conflict of Interest Legislation ........................................................... 37 CHAPTER 3: NEED FOR REFORM ............................................................................ 39 A. Manitoba Case Law ........................................................................................... 39 B. Judicial Inquiry Reports ...................................................................................... 42 a) The Bellamy Report (Ontario)..........................................................................42 b) The Cunningham Report (Ontario)..................................................................44 c) The Barclay Report (Saskatchewan)...............................................................46 CHAPTER 4: REMEDIAL PROVISIONS ..................................................................... 48 A. Range of Sanctions..............................................................................................48 B. Meaning of Suspension........................................................................................51 CHAPTER 5: CONFLICT OF INTEREST COMMISSIONER ....................................... 53 A. Establishing a Municipal Conflict of Interest Commissioner.................................53 B. Advice..................................................................................................................55 C. Investigation.........................................................................................................57 D. Enforcement.........................................................................................................59 CHAPTER 6: OTHER ISSUES ..................................................................................... 64 A. Gender-Neutral Language...................................................................................64 B. Codes of Conduct................................................................................................64 C. The Legislative Assembly and Executive Council Conflict of Interest Act...........65 D. The Public Schools Act........................................................................................66 CHAPTER 7: SUMMARY OF RECOMMENDATIONS..................................................67 APPENDICES................................................................................................................71 Modernizing The Municipal Council Conflict of Interest Act vi EXECUTIVE SUMMARY The promotion of ethical conduct has become a priority for all levels of government in Canada. Municipalities, provinces, territories and the federal government are looking for new ways to strengthen their ethical regimes, whether it is through the establishment of codes of conduct; integrity or conflict of interest commissioners; lobbyist registries and registrars, or expanding the mandate of the office of the ombudsman. Members of municipal councils are elected public officials, and, as such, they have a duty to consider the well-being and interests of the municipality as a whole.1 When a member of council uses his or her position to advance his or her own interests, he or she may be found to be in a conflict of interest. In Manitoba, legislation has been in place for several decades to address municipal conflict of interest. The Municipal Council Conflict of Interest Act2 (“MCCIA”) was passed on August 18, 1983 and came into force on February 1, 1988. It applies to all municipalities in the province of Manitoba, including the City
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