Wednesday, April 26, 1995 - 1:30 p.m.
Speaker: I will now call the House to order. At this time, we will proceed with silent Prayers.
Speaker: At this time, we will proceed with the Order Paper.
Introduction of Visitors.
INTRODUCTION OF VISITORS
Mr. Penikett: I would call Members' attention to the presence in the gallery of the classes of grade 4 and 5 students from Elijah Smith Elementary School. Their teachers are Carmen Boye and Joanne Roth. They are here today to learn about the Legislative Assembly as part of their studies and I would ask all Members to make them feel welcome. Applause
Speaker: Are there any Returns or Documents for tabling?
TABLING RETURNS AND DOCUMENTS
Hon. Mr. Phelps: I have for tabling two legislative returns.
Speaker: Are there any Reports of Committees?
Are there any Petitions?
Petition No. 4
Mr. Cable: I have a petition for tabling. It is from a number of complainants, relating to the operation of the Workers' Compensation Board. It is signed by approximately 40 people.
Petition No. 3 - received
Clerk: I have had the honour to review a petition, being Petition No. 3 of the Second Session of the Twenty-Eighth Legislative Assembly, as presented by the Hon. Member for Mount Lorne on April 25, 1995. This petition meets the requirements as to form of the Standing Orders of the Yukon Legislative Assembly.
Speaker: Petition No. 3, accordingly, is deemed to be read and received.
Speaker: Are there any Bills to be introduced?
Are there any Notices of Motion for the Production of Papers?
Are there any Notices of Motion?
Are there any Statements by Ministers?
This then brings us the Question Period.
Question re: Canada AM broadcast
Mr. Penikett: The Minister of Tourism boasted this week about spending between $100,000 and $200,000 of taxpayers' money to persuade the CTV Network to film two Canada AM programs here in June, but according to a news report, Canada AM's executive producer has said that the Minister's comments are premature and that nothing is finalized. Who is correct in this matter, Canada AM or the Minister of Tourism? What exactly is going on?
Hon. Mr. Phillips: That is news to me. My understanding is that we are in final negotiations about the amount of money, but there will be a commitment to come to the Yukon on June 20 and June 21. I would not have announced it otherwise.
Mr. Penikett: I quote from Fiona Conway, Canada AM's executive producer, who said, "We have been talking to them and working out a deal, but nothing is finalized. There is nothing in writing. The breakdown of money is still to be negotiated."
The $100,000 is obviously not for advertising; it resembles instead the questionable practice known as cheque-book journalism. Can I ask what exactly are the Minister's proposed arrangements with CTV?
Hon. Mr. Phillips: If the Member can remember back a year ago when Good Morning America did a week of shooting out of Alaska. We would like to invite Canada AM to the Yukon, and we have, and I understand that they are coming and will be doing two days of programs originating from the Yukon. The content will be primarily Yukon content, raising the level of awareness for Canadians.
Mr. Penikett: All Members will be overjoyed to see Canada AM here. The issue is not whether they come, but who pays for it? The Minister has said that Yukon will gain the equivalent of $1 million in paid advertising from CTV from this arrangement, so I would like to ask him: has CTV or its producers given the government any assurances of what the nature of the coverage is that the Yukon will receive? For instance, has the network been able to guarantee there will be no negative stories, no wolf-kill stories, no Taga Ku stories, no items showing government Ministers saying silly things? What are the arrangements with CTV?
Hon. Mr. Phillips: CTV has full editorial control, as Good Morning America has and as they require when they do this kind of programming. Our purpose is to raise the awareness. The Member says that CTV is not coming up here. I played a videotape, and I will show it to the Member, if he wants, at the break. It is a 30-second tape of Valerie Pringle and Dan Mathieson announcing that they are coming to the Yukon on June 20 and 21. If the Member wants to see that at the break, I would be more than happy to show him the videotape.
Question re: Canada AM broadcast
Mr. Penikett: I would love to see Valerie Pringle at the break, but since I am reading comments from the executive producer, which says the arrangements have not been finalized, I am obviously asking questions.
The obvious issue is if there are no limitations on CTV or Canada AM truthfully covering stories, such as Taga Ku, broken government promises to First Nations or public servants, or the failure of the government to do anything to create wilderness parks, how can any Minister, in his right mind, promise that these programs will have the value of $1 million in positive publicity?
Hon. Mr. Phillips: I think the question that the general public and the tourism industry will ask these people is, how can anyone, in their right mind, be opposed to CTV coming to the Yukon to do several hours of live shooting in the territory, and making people aware? The Member is obviously not aware that Good Morning America came to Alaska under the same guidelines, where the producers maintained total control over the program. The level of awareness raised in the United States was immense, and the number of inquiries Alaska has received as a result has been overwhelming.
This Opposition has been against every single thing that has gone on. It is interesting that the Member is also against CTV coming to the Yukon. The Member should have stuck around the convention for another day. I know it was his first appearance in about 10 years at a TIA convention, but he should have stuck around longer to see the reaction of the tourism industry to the news of CTV coming to the Yukon.
Mr. Penikett: Whenever the Minister begins behaving like a three year old, we know he is in trouble. I have been on CTV and Canada AM many, many times, but I was never gullible enough to say that it was worth money to the people of the Yukon having me there. I did not even do that when I wrote television programs that were seen by millions of people around the world. The Minister should grow up, get a life, and get into the real world. Where is the $100,000 to $200,000 coming from, and why did the Minister - when he was explaining about the scarcity of tourism marketing dollars - not tell us about this a few days ago, when we were discussing his tourism budget? By the way, how will the Minister tell that we are actually going to get value for money for this?
Hon. Mr. Phillips: There is only one individual who has to grow up and understand what marketing is all about. If one wants to get promotion, one needs awareness.
I will send a copy of the interview that was conducted this morning with a fellow from Alaska who described the awareness it brought there. Perhaps the Member should read that and would finally learn a bit about marketing. It is very expensive to advertise on any national television network. This is a real opportunity for us to promote the Yukon. The money for this particular agreement was negotiated and arranged through the economic development agreement. That is where most of the money will come from.
Mr. Penikett: Not only did I hear the person from Alaska on the radio this morning, but I also heard him say that one could not prove any benefits from these kinds of expenditures.
We are dealing with a very strange new world. The Liberals have cut CBC and CHON FM. The Liberals and the Tories are both selectively subsidizing news and public affairs programs. There is a reasonable question about free speech and free press, and about where this will all end.
I would ask the Minister if, as a matter of policy, this government intends to spend more taxpayers' money trying to buy positive news stories, not on advertising programs, but on public affairs and news programs.
Hon. Mr. Phillips: With respect to our tourism marketing, we will partner with any company - private or otherwise - or any government to get our message out to both Yukoners and others throughout the world that the Yukon is a reasonable place to visit.
I know that the side opposite has never supported these marketing programs and does not support CTV coming here. We will make sure that we point that out in the next election to the constituents out there who are employed in the tourism industry.
Question re: Workers' Compensation Board, complaints
Mr. Cable: I have some questions for the Minister responsible for the Workers' Compensation Health and Safety Board. When representatives of the board appeared before the House a couple of weeks ago, some of the Members expressed the feeling there had been an increase in the number of complaints relating to the operation of the board in the last two years. Has this been the experience of the Minister? Is he aware of the fact that there has been a significant number of unhappy claimants in the last couple of years?
Hon. Mr. Nordling: No, I am not specifically aware that the number has picked up in the last couple of years. There have been problems over the last couple of years and very vocal expressions of discontent by some workers. However, that has also occurred in the past.
I met with the chair, the alternate chair and the president this morning - in fact, I just came from that meeting - to discuss those sorts of issues.
Mr. Cable: Could the Minister indicate the results of those discussions? Were there some problems identified?
Hon. Mr. Nordling: Yes, there were some problems identified. The chair and alternate chair did not have the same level of concern as was expressed in the media this morning about the attitude toward injured workers. They are looking at the workers' advisor position and will be considering the advice offered to them by the Member for Riverside and other Opposition Members, who I believe met with the chair.
Mr. Cable: The petition filed today asked for a public inquiry. Is the Minister prepared to ask the officials of the Workers' Compensation Health and Safety Board to reappear before the House? If the Minister is willing to do so, could the members of the Yukon Injured Workers Alliance give further evidence and advise whether or not a public inquiry is desirable?
Hon. Mr. Nordling: No, we can do that directly. As the Member for Faro pointed out, there is one section in the new Workers' Compensation Act that gives the Minister some authority, despite the board's tendency to be completely at arm's length from the government. That section allows the Minister to direct the board to inquire into any matter.
I will look at the petition. I will discuss the possibility of an inquiry with the Member for Riverside and the Members of the Official Opposition, who have expressed concern in that regard. If we feel that a public inquiry or an inquiry at the direction of the Minister is necessary, I am prepared to order that inquiry.
The other option that the Member for Faro brought up - and I agree with it - is to look at amendments to the legislation to deal more effectively with this sort of problem.
Question re: Murder on the Iditerod Trail
Ms. Moorcroft: On March 6, the Minister of Tourism announced that Yukon Tourism had worked successfully to bring a CBS television movie of the week to the Yukon, ensuring local actors and crews would get jobs. What was the value of the government's contribution to the production of Murder on the Iditerod Trail?
Hon. Mr. Phillips: I do not have that figure here. I would have to come back to the Member with what contribution we made. We certainly would be involved initially in speaking to the producers in Los Angeles and in Vancouver and other places, trying to encourage them to come here. I know they were looking at several other locations before they decided to come to the Yukon, and we were very much a part of those discussions.
Ms. Moorcroft: I would like to congratulate the Minister. I understand that he played the part of an ambulance driver in the movie. He did not announce in his press release that he was going to be part of the production. Did the Minister audition, the same as other local actors?
Hon. Mr. Phillips: No. In fact, I guess they just figured that since I am a Member of this Legislature, I am a born actor. What happened is that I went out to the site to meet the producers and talk to them. When I was there that afternoon, one of the stand-ins did not show up. I did not get any lines, which disappointed me - Kate never even said "Hi" to me. I got to sit down beside a gurney that the star was lying in. That was the extent of my stint in the movies.
Ms. Moorcroft: I hope that the Minister's budding movie career is not what his marketing program is all about. Did the Minister receive an acting fee, and is he donating that to a charity?
Hon. Mr. Phillips: No. I did not receive any fee, and I do not know if I am going to receive one. If I do receive a fee, I will be donating it to some worthwhile cause in the Yukon arts community.
Question re: Tourism, wilderness video
Mr. Harding: In answer to questions earlier today, the Minister of Tourism said the government would partner with anybody, private or otherwise, to help get its message out.
I had a conversation with a gentleman yesterday who is concerned with the Minister's department's approach to a proposal he had made. His group of Yukoners is seeking to establish a promotional video, focusing on wilderness activities in the Yukon. They have invested a lot of money in their equipment, and they are looking for some cooperation with Tourism in putting this demo together.
Recently, the Mayor of Whitehorse took their proposal to Japan and received a tremendous response. What is the Minister's policy with regard to supporting marketing initiatives such as this?
Hon. Mr. Phillips: From the question asked by the Member, I have no idea which marketing initiative he is talking about, nor what film he is talking about. We have all kinds of individuals approach the department all the time to provide funds, with the idea that the Yukon will receive some benefit. We look at all of them and weight the costs and benefits. If it appears to be something we are interested in, with fairly significant benefits to the Yukon, we partner with them. If it does not, then we do not.
Mr. Harding: The group was the Great Northern Adventures group, and I am sure the proposal was important enough that the Minister should have been briefed. Once they have produced this demo, they will be seeking sponsors who have interests in the recreational tourism field, so they can produce more products promoting the Yukon.
Renewable Resources has already said that it will provide some support. The Minister says he is big on marketing. Can he tell me the reason this proposal would not fly?
Hon. Mr. Phillips: What an outrageous question. The Member says it was the Great Northern Adventures group and asks why the proposal would not fly. I do not have a lot to go on, based on that description by the Member.
As I said before, the Department of Tourism marketing branch looks at these kinds of proposals. I have to tell the Member that they come from virtually everywhere - from religious groups to private corporations to other groups that feel they have something to sell, and they want to come to the Yukon and do a film; and if we just give them $10,000 or $20,000, it will be of great benefit to us.
We look at all the proposals, weigh the benefits and costs, and then make a decision. I cannot tell the Member whether or not I supported that particular initiative at this time without all the details.
Mr. Harding: I am deeply disturbed that the Minister has still not been informed about this particular proposal. It is the only one that this group has submitted, but nonetheless, perhaps the Minister will be made aware of it now that it has been brought up during Question Period.
This Minister likes his tourism secret agent trips around Europe and he likes to go off to Florida to do his marketing, but when Yukoners come with up some proposals, the Minister does not seem to know much about them.
What is the Minister going to do to ensure that the proposal submitted by these Yukoners gets a fair airing and an evaluation by his department?
Hon. Mr. Phillips: Our policy is to give everyone a fair hearing, consider all proposals and weigh them, as I said before. The department will treat this proposal the same as it has others.
Question re: Public servants' political rights
Ms. Moorcroft: I have a question for the Minister responsible for the Public Service Commission.
Since the Yukon Party's weekend convention in Watson Lake, the Yukon Party voted overwhelmingly to do away with political rights of public servants to run for and hold office. I would like to know if the government intends to cancel the political rights of public servants in this sitting? Does the government intend to amend the Public Government Act or the Education Act provisions guaranteeing these rights, during this sitting?
Hon. Mr. Ostashek: I would tell the Member opposite that the government gives serious consideration to all resolutions that come forward to the government from the party. This resolution will be given consideration as will other resolutions that were brought forward.
Ms. Moorcroft: That was a complete non-answer. I would like to follow up with the Government Leader on this. Does the government intend to introduce new legislation or to amend any of the bills on the floor of this House to do away with public servants' rights, during this legislative sitting or the next one?
Hon. Mr. Ostashek: I just answered the question. I cannot tell the Member if there will be amendments proposed or not. I said that the government will give the resolution serious consideration.
Ms. Moorcroft: This looks like a huge change designed to demonstrate the continuing hostility of the Yukon Party toward the public service. The government refused to negotiate with teachers and public servants and legislated a two-percent wage cut.
Does the government plan to go through the motions of consultation with teachers and public servants before abrogating their political rights?
Hon. Mr. Ostashek: That is a hypothetical question at this point. As I said, the resolution just came forward on the weekend. Caucus has not even discussed it and, at this point, I am not prepared to answer the question because it is purely hypothetical.
Question re: Yukon Utilities Board review
Mr. Penikett: The Government of Yukon has been promising the Yukon Utilities Board review streamlining since the beginning of the year, when the Deputy Minister of Justice said at a stakeholders meeting that it would be ready by Rendezvous, which was two long months ago. Exactly when will the Justice Minister or the Government Leader be tabling the Cabinet's decision on this question?
Hon. Mr. Phillips: I hope to be able to take the recommendations to Cabinet very shortly. Once they have been through Cabinet, I imagine that they will be made public.
Mr. Penikett: An ideal time for presenting the new utility policy might have been at the upcoming energy sector conference on Saturday, April 29, as was originally announced in the February 15 advertisement. However, we understand that the Yukon Council on the Economy and the Environment has taken it off the conference agenda.
Can the government explain why the item is no longer on the agenda, and why it is taking so long to complete this process, which is of interest to a great many Yukoners?
Hon. Mr. Phillips: I imagine the reason it is not on the agenda is because there is not a possibility of getting it through Cabinet and into its discussion form in time for that particular meeting.
Why is it taking so long? There were a lot of recommendations and concerns expressed. I suspect that it will be coming to me very shortly, at which time I will review it. I have not had a chance to review it yet, but once I do, I will take it right to Cabinet.
Mr. Penikett: As it was originally constituted, the Yukon Energy Corporation management was supposed to be monitoring the activities and performance of the Yukon Electrical Company Limited, in its capacity as the administrator of the Yukon Energy Corporation assets, as well as looking out for the interests of Yukoners - which has been difficult to do, now that Yukon Energy Corporation has been subordinated to the Yukon Electrical Company Limited, a matter about which even the Auditor General has raised questions.
I would like to ask either the Government Leader or the Minister of Justice this: in proceeding to Cabinet, or in making recommendations, which have presumably now been initialed by the Minister, whose advice did the government accept on the question of utility regulation - Alberta Power's, the Yukon Energy Corporation's or the groups' representing electrical consumers in the Yukon?
Hon. Mr. Ostashek: I find it somewhat amazing that the Leader of the Official Opposition would stand up in this Legislature and make allegations that we are moving the utility and Yukon Electric Company Limited closer together when, in fact, that started under his administration. It started long before we took over government. I do not know where he gets the idea that he can make those kinds of allegations.
Most of the recommendations that will be taken came from the stakeholders review process that was carried out last fall.
Question re: Centennial anniversaries program
Mrs. Firth: I have a question for the Minister of Tourism.
On Thursday, March 20, the Department of Tourism and Department of Economic Development announced that Yukon communities should find out in the next week how they will share in a $9 million tourism fund. The territorial government was putting up money for tourism projects related to the gold rush anniversaries celebrations. At first, no one had applied for the money and the government had to extend the deadline. Now, they are overwhelmed with applications, which total $27 million.
At that time, the assistant deputy minister, Mike Kenny, said that the Minister of Tourism would be expected to announce the successful projects next week. That was almost three weeks ago. Can the Minister tell us what is holding up the announcement?
Hon. Mr. Phillips: I was not planning to make any announcement; I do not know if that is a misquote.
I heard it on the news, as did the Member, for the first time, and I was not aware that anyone was making an announcement at that time.
Mrs. Firth: If the Minister heard it, why did he not correct it?
The expectation is out there that the Minister would be announcing it almost three weeks ago. When is he going to announce it?
Hon. Mr. Fisher: I thought maybe I should get in on this debate just to clarify things somewhat. The first round was to receive ideas from proponents of projects. There was, as the Member quite correctly indicated, something like $27 million worth of projects submitted. The department is corresponding or talking with each community about the projects, either on the project as submitted or some variation of it, or in some cases, it is asking the community to go back and have another look at defining a different project. I believe that letters have been received by all communities or are in the process of being received by all communities, but to actually say that projects have been approved at this time, we are just not able to do so.
Mrs. Firth: Let me ask the Minister this: he has not given us any more information today than he gave us a month or two months ago when we debated this issue in Economic Development. Is the Minister saying that there has been absolutely no progress made? Because what he said today is exactly what he said in the debate on Economic Development a month or two months ago. Has there been no progress made, and why not?
Hon. Mr. Fisher: There has been a lot of progress made. Staff from the department have been working with communities on their projects, redefining the scope and so on. It is an ongoing process and yes, there has been a lot of progress.
Question re: Centennial anniversaries program
Mrs. Firth: I would like to follow up either with the same Minister or with the Minister of Tourism, whoever wants to answer the question about the same issue.
There have been great expectations raised in the communities and in Whitehorse about the money that is going to be given away. People want to get going on their projects. The Minister today said that there has been a lot of progress made, but he has not been able to tell us what it is, compared to two months ago in the debate.
At what stage are the projects? Has any project been approved yet? Perhaps the Minister could answer that.
Hon. Mr. Fisher: I believe I did answer that. Some projects have been approved in principle, and I have already said that we are dealing with some communities. In some cases, the project may have to be downsized or changed in scope, but the department people are working with the proponents of the projects to make the project fit the criteria.
Mrs. Firth: Perhaps the Minister can tell us which projects have been approved and for how much money.
Hon. Mr. Fisher: No, I cannot give definitive answers on exactly how much money each project is going to be funded for at this point in time.
Mrs. Firth: It makes me suspect that the government is waiting, as it has done in the past, until we are no longer sitting in the Legislature and then it will make an announcement with respect to who is going to get money and who is not going to get money.
I want to ask the Minister this question: when will the whole process be finalized and when will these communities get the money to begin their projects? When will that happen? When will the process end? When can the communities expect to start working on their projects?
Hon. Mr. Fisher: It depends on a lot of things. Some are very close to being finalized. There may very well be some planning money advanced in the next few weeks. There are other communities that have not even applied yet. I cannot say that, on such-and-such a date, all of the projects will be approved; it does not work that way.
Question re: Animal Protection Act
Mr. Cable: I have some questions for the same Minister on the animal protection legislation. A few months after this government came to power in early 1993, the then Minister of Renewable Resources led the House to believe that the animal protection legislation was underway. There were public consultations. On April 7, 1993, that Minister said, "As soon as the groups get together" - this is a number of groups that were being consulted - "and notify us that we can continue with the legislation, we will do it."
I gather from comments made in 1994, and most recently by the present Minister, that the government has done a 180-degree turn on this legislation. Can the Minister tell us what the reason for this change is? Has he received contradictory legal opinions on the necessity for reviewing the legislation?
Hon. Mr. Fisher: The opinion that we have from Justice is that by changing the act or writing a new act, we could not really strengthen the abilities that we already have under the current legislation. Consequently, we want to get some additional advice and some additional comments on it before we make a commitment to change existing legislation.
Mr. Cable: It sounds like the Minister is considering the need for change in the legislation. Last week, I asked the Minister why he had not responded to a Yukon Humane Society letter dated January 25. He indicated he had not seen it. Subsequently, he advised that he had received it and had turned it over to his department.
Has he had a chance to review the propositions put forward by the Humane Society, which would appear to differ from the advice he is receiving? Has he had a chance to review the letter and respond to the Humane Society?
Hon. Mr. Fisher: I just sent a very brief response to the Humane Society, saying it is being referred to the Justice department, and that we would be reviewing in detail the comments made by the Humane Society, to see if they are accurate with respect to the ability to act under existing legislation.
Mr. Cable: The Minister's officials were good enough to give me a copy of the old Commissioner's Order from many years ago, appointing certain members of the Yukon Humane Society for the purpose of enforcing the act. Those appointments have since expired. I note that the act contemplates the appointment of humane societies for the purpose of enforcing or dealing with the act, as well as the appointment of humane societies as official animal keepers.
Does the Minister intend to use those provisions? Does he intend to bring the humane societies into the picture to assist him in enforcing the act?
Hon. Mr. Fisher: I am not exactly sure about the enforcement end of it, but I understand the Whitehorse Humane Society is still pursuing building some sort of shelter. We would be very interested in, and supportive of, the Humane Society constructing this type of shelter. For instance - and what is actually sparking most of the questions regarding this - with respect to the farm on the Mayo Road this past week, we removed some of the animals to a neighbouring farm, which is likely not the best route. It would have been much better if the Humane Society had had a piece of property and some facilities to which we could have moved the animals.
We certainly want to work with the Humane Society to see what can be done to possibly strengthen the abilities we have today.
Question re: Sex offender, monitoring of
Ms. Commodore: My question is for the Minister of Justice regarding follow-up from questions asked yesterday about a convicted sex offender at the halfway house.
We have an individual here who was serving a life sentence for second-degree murder of a 17-year-old farm worker. He was also convicted of sexually assaulting a young boy in 1988. In 1992 and 1993, the victim's mother contacted Correctional Services of Canada to express concern that her son was still undergoing therapy because of the abuse, and recommended that the offender not be released. We appear to have a person who could be very dangerous in our community.
Can the Minister tell us how long this individual, Mr. Robichaud, has been at the halfway house in Whitehorse and why the public was not informed of this person's presence in the community?
Hon. Mr. Phillips: Those are the same questions that I have asked the department. I do not have an answer as to how long Mr. Robichaud has been at the halfway house, but I understand that the process is one that is totally controlled by the federal government. This happens in every other territory and province in the country.
When the National Parole Board decides that a person should get parole and takes some part in the decision where he or she should go the local RCMP in the area are notified and, based on the information that they have, they can make the information public that the individual is in the area.
The Department of Justice is not always notified that an individual is in the area, and that is why I am asking for a full review of the process, because I think that I should know when individuals like this are in the area so that we can take appropriate action if necessary.
Ms. Commodore: The Department of Justice has a contract that they sign with the halfway house in Whitehorse. Therefore, the department certainly should have some say about the individuals who are released to that halfway house.
A psychological report dated this past December stated that Mr. Robichaud was reluctant to explore past issues about anger, which leads to drinking and drinking leads to offending. He may be looking for an excuse to abuse substances.
I do not know what the criteria is for releasing these people to halfway houses, but I would like to ask the Minister, when he seeks information about that review, why this person was released to this halfway house. I think the general public would consider him a very dangerous person to have on day parole in our community.
Hon. Mr. Phillips: I could not agree more with the Member and that is why I am calling for a review of the situation. Again, it is the federal government that has released this individual on day parole in the Yukon. We are trying to follow up on the whole process to see what input we have in the future, if we can have any. I understand that our input is somewhat limited. It happens across the country. People are paroled all across this nation and they are not always from the jurisdiction that they are paroled into. I want to find out a little more about the process and how we can have input into that process.
Ms. Commodore: It appears that the only condition that this individual has on his day parole is that he return to the facility nightly. It appears that he is allowed to come and go, and one of the reasons for that condition is that alcohol and anger problems are directly related to his crimes and that if he abstains from alcohol and seeks counselling, it will reduce his risk, as will ongoing psychological counselling and the avoidance of children. We have an individual who is allowed to come and go, who appears to have a problem, who, in his psychological report, says that he may be looking for an excuse to abuse substances. He is allowed to come and go in our community right now, so the problem is occurring right now. We have women who are concerned for their safety and for their children's safety. I would like to be assured, and so would the general public, that the safety of the children in our neighbourhood is of prime importance. I would like to ask the Minister when he expects to hear word about his review? I would like it to be today and so would women and children in the community.
Hon. Mr. Phillips: We will not hear the results of the review today, because the review will be starting very shortly. The review will be on the whole issue of parole and this type of parole. The department is very concerned about this particular issue. I am very concerned about it, as the Member opposite is. I notice there is a strong issue of public safety and I am taking this very seriously. I want to find out how this happened and why it happened. The Keeping Kids Safe program had a meeting on Monday night. They discussed this individual at that meeting for over an hour. I understand that the individual's parole officer has recommended that this individual be put into that program. I can report back to the Member further probably on Monday.
Speaker: The time for Question Period has now elapsed. We will proceed to Orders of the Day.
ORDERS OF THE DAY
Clerk: Motion No. 2, standing in the name of the Hon. Mr. Phillips.
Motion No. 2
Speaker: It is moved by the Hon. Government House Leader
THAT the membership of the Standing Committee on Public Accounts, as established by Motion No. 11 of the First Session of the Twenty-Eighth Legislature, be amended:
(1) by rescinding the appointment of the Hon. Mr. Brewster, Member for Kluane; and
(2) by appointing the Hon. Mr. Nordling, Member for Porter Creek South.
Motion agreed to
Motion No. 45
Clerk: Motion No. 45, standing in the name of the Hon. Mr. Phillips.
Speaker: It is moved by the Hon. Minister of Justice
THAT the Yukon Legislative Assembly, pursuant to subsection 21(1) of the Human Rights Act, appoint Ms. Monica Leask, Cst. Steve McLeod and Ms. Jan Kulicki to be a panel of adjudicators to be called upon as required to adjudicate complaints; and
THAT the Yukon Legislative Assembly, pursuant to subsection 21(1) of the Human Rights Act, designate Ms. Monica Leask as Chief Adjudicator.
Motion agreed to
Bill No. 55: Second Reading
Clerk: Second reading, Bill No. 55, standing in the name of the Hon. Mr. Phelps.
Hon. Mr. Phelps:
I move that Bill No. 55, entitled An Act to Amend the Apprentice Training Act, be now read a second time.
Speaker: It has been moved by the Hon. Minister of Education that Bill No. 55, entitled An Act to Amend the Apprentice Training Act, be now read a second time.
Motion for second reading of Bill. No. 55 agreed to
Hon. Mr. Phillips: I move that the Speaker do now leave the Chair and that the House resolve into Committee of the Whole.
Speaker: It has been moved by the Hon. Government House Leader that the Speaker do now leave the Chair and that the House resolve into Committee of the Whole.
Motion agreed to
Speaker leaves the Chair
COMMITTEE OF THE WHOLE
Chair: I will now call Committee of the Whole to order. Is it the wish of the Committee to take a brief recess?
Some Hon. Members: Agreed.
Chair: We will take a brief recess. Recess
Chair: I will now call Committee of the Whole to order. We are dealing with Bill No. 99, entitled Ombudsman Act.
Bill No. 99 - Ombudsman Act - continued
Chair: Is there further general debate?
Mr. Cable: When we finished yesterday, we were talking about the length of time taken to appoint the ombudsman. The Government Leader indicated that in 10 or 11 months it would be appropriate to put this office into action. I was questioning him about what had to be done.
It appears to me that this House will be brought back into session in December, if I understand this government's intention clearly. The beginning of December, of course, is only seven months away; it is not 11 or 12 months away. Is it the Government Leader's intention, as I think he indicated yesterday, to have this appointment in place and formally ratified - assumably after getting some consensus - immediately after the House is brought back into session later this year?
Hon. Mr. Ostashek: That is a scenario that I believe I described yesterday. If there appears to be some urgency by the Members opposite for this office to be established, that is the timetable that is realistic. When the next session begins, whether that is November or December, or whenever, it can be one of the first orders of business. That way, the ombudsman can get on with the job of setting up his office.
Mr. Cable: That would appear to be seven months away, rather than 11 or 12 months. That is a much more hopeful schedule. The ombudsman will, of course, need some time on the ground after he is officially appointed, assumedly to hire staff. Is it the intention of the government to rent the premises ahead of time to get the ombudsman established, or is that going to left until after the formal appointment?
Hon. Mr. Ostashek: Those are the mechanics that can be worked out after the act is passed. I am not hung up one way or the other - whether or not we rent the space ahead of time or if Government Services would have a valid reason for not renting it ahead of time. I am sure we can have the office space identified.
I think when I was giving the time line of one year, I meant that it would take that long for the office to become fully operational. In order for that to happen, we would have to start when the Legislature comes back into session, have an appointment made, and let the ombudsman get his feet on the ground and get the office running. It will take some time. In the interim, we can implement a communications strategy to educate the public about what the ombudsman's office will be able to do.
Mr. Cable: At the risk of being repetitious, it is the Government Leader's intention to bring forth a name early in the session for approval by the Members of the Legislature - is that correct?
Hon. Mr. Ostashek: Yes, it is, and it is my understanding that the Members opposite were asking for the opportunity to propose names. I do not have any difficulty with that. They can certainly propose names and we can bring forward one, two, three, or as many names as they feel is adequate, for the Legislature to decide on. I view this as being a totally non-partisan appointment, and that is the only way it is going to work. It needs the full consensus of the Legislature to be able to work.
Mr. Cable: I think that is accurate. Whether or not the whole concept works will depend more on the person appointed than the legislation. I am pleased to hear that the Government Leader will be attempting to obtain consensus.
When does the Government Leader expect to commence this consensus process for the soliciting of names? Could he give us a little more detail as to how we are going to reach this consensus?
Hon. Mr. Ostashek: It is my understanding that the ombudsman will be appointed by a two-thirds majority of the Legislature, if my understanding of these amendments are correct.
If there is an agreement on a name before it comes to the Legislature, then there will not be much debate. If there is some disagreement, there may be some extensive debate.
When will we start this process? Certainly, not until this Legislative session adjourns. I cannot tell the Member when that is going to happen, but I expect that the process will start immediately after this bill is passed, at which time the departments will start working on it in order to have this office in place, I hope, sometime in the new year.
Mr. Cable: I am frantically looking for the appointment section.
How does the Minister see that the name will come forward? In the unlikely event that there is not total agreement, is the Minister saying that his government will actually present a name for debate, or that there will be a variety of names that come forward? What mechanics are contemplated?
Hon. Mr. Ostashek: I wish I could answer that question for the Member, but we do not have any preconceived notions about this. The process is something that we, as Members of the Legislature - there are different political parties in the Legislature - will have to work out once the bill is passed. Section 2 of the bill states that it will require two-thirds of the Members of the Legislature to approve the appointment.
I do not have any idea what we will do for mechanics. We will work on that once the session is over. We will consult with the Opposition to see what forum we will use to solicit names.
Mr. Cable: I am pleased to hear that the Minister will both take advice for the method for getting the appointment, and also for the appointment itself. To confirm, from what I understand, the Minister is saying that the procedure now for appointments to boards and committees will not be used, but there will be some attempt at getting a consensual process working. Is that correct?
Hon. Mr. Ostashek: That is correct. My understanding is that British Columbia advertises for this position. That may be a route that we will want to take as well, rather than just taking names from the Leader of the Liberal Party, or from the Leader of the NDP or from me. Maybe the proper way is to advertise, and then to review the applications.
Mr. Cable: I assume that we will be passing the other two pieces of legislation - the access-toinformation and some conflict legislation - both of which contemplate a person who will, at some juncture, be the ombudsman. However, from what I heard the Minister say, he will have to wait until the House is back in session in November or December - I think he said. Is he then prepared to put in some interim appointments with respect to these other two acts, while we are getting our act together on a name and the motion backdrop for the appointment of the ombudsman?
Hon. Mr. Ostashek: No, we have discussed that in caucus and we do not think it is necessary. We have said as long as we have it in before the next election, we are satisfied that we have lived up to our election commitments. We might as well do it right, proceed with it and get the ombudsman in place. Before this time next year, all of the acts will be in place and he will be able to administer them.
Mr. Cable: I understand that the Minister and the government are working to some sort of election platform time table, but is there any reason whatsoever why these two very important pieces of legislation, the access-to-information and conflicts legislation, should be left in limbo for seven or eight months?
Hon. Mr. Ostashek: There is quite a bit of work required for the regulations to both the access and conflict legislation. I do not see a reason to go through the exercise of putting an interim person in place and trying to get it all going when we can take the time that is required to do it properly.
Mr. Cable: I guess there probably will be some disagreement on that proposition from this side of the House.
I believe the Minister responsible for the Workers' Compensation Board has discussed this at noon hour today with the representatives of the board, but I have not had a chance to talk to him to confirm it, but I think that is what took place at lunch time. Does the Government Leader have any thoughts on the desirability of amalgamating the workers' advocate for the Workers' Compensation Board into the ombudsman office?
Hon. Mr. Ostashek: No, I do not. I have not thought about it at all.
Ms. Moorcroft: Will the ombudsman be a member of the bargaining unit employed in the public service?
Hon. Mr. Ostashek: I do not think that would be appropriate, from all the information I have.
Ms. Moorcroft: Will the act specify that they are excluded, or is that something that will be done in the job description and through the hiring process?
Hon. Mr. Ostashek: I do not have the bill in front of me, but I am advised that section 7 speaks to the appointment of the staff. The ombudsman has to be someone perceived as non-partisan and non-political and able to make judgments that are acceptable to all sides of the Legislature. If we are going to advertise for an ombudsman, as they do in British Columbia - which I think might be a good idea - we will review the applications, and it will depend upon who is acceptable to a two-thirds majority of this Legislature.
Ms. Moorcroft: Will the person who is hired for this position, and who will be working with all levels of the public service, receive the same pension and medical and dental benefits that public servants and managers have?
Hon. Mr. Ostashek: There would be some flexibility. I believe, in starting with a half-time appointment, it may even be of a contractual nature. That is not saying the work will be 20 hours a week, but it will not be a full-time position. We are not trying to make this a 9 a.m. to noon or 8 a.m. to 5 p.m. job.
Ms. Moorcroft: Half-time employees now working for the Yukon government have the ability to participate in pension schemes. That is an issue that affects working people. The ombudsperson will be similar to a public servant. They will not be a member of the bargaining unit, but I would argue that it is reasonable for them to receive the same kinds of benefits that public servants they are working with receive.
Does the Minister have a position on that?
Hon. Mr. Ostashek: It is not addressed in the bill. Those are the mechanics of hiring someone; it has nothing to do with the bill that is front of us now. It is strictly the mechanics of how we put that person in place.
Mrs. Firth: I just want to get my concern on the record about the timing of this legislation coming into force. I heard the Government Leader say that we will be getting together, as Members - I do not know if I will be included in that, as I believe I only heard him refer to the Leader of the Official Opposition and the Liberal Leader - with respect to the process for choosing an ombudsman. I heard him say that he would make a commitment that they would get together before this time next year, and that the legislation would be implemented before this time next year or by this time next year, when we are again in the Legislature.
We have had all this speculation about an election. The Minister has been very vague about whether or not we are going to have a fall election. In saying this, is he saying that we are absolutely going to have another sitting of the Legislature, so that all this speculation about fall elections and spring elections is all just that: speculation? Otherwise, I do not have any concerns about the timing. Well, perhaps I would have some concerns; promises have been made before, over two or three years.
I want to get something definite. I do not want to agree to a kind of open-ended time frame for acts to come into force if I am getting a tricky, speculative answer about when we might be sitting again. I would like something a bit more conclusive before I am prepared to accept that the ombudsman will actually physically be in place during the term of this government.
Hon. Mr. Ostashek: This government has 18 months remaining in its mandate. Any talk about an election at this point is purely speculative. I cannot stand here and make a commitment that there is not going to be an election, because sometimes elections do happen and they do interfere.
Let me put it this way; if this government called an election without implementing this, we would have to answer to it in the election campaign. The only thing that I can tell the Member is that it is not possible to put the logistics for the ombudsman in place during this sitting. The first possible opportunity that we have is very early in the next sitting. If we use that logistical pattern, and if things play out as they have in the past, by late this year or early next year, we will have an ombudsman in place who can get on with the job of setting up an office.
Mrs. Firth: I appreciate that, but the Minister is asking me to accept another commitment. The Minister is asking me to believe that we are going to be here and not to worry about the date of the legislation coming into force, because the Government Leader is going to ensure that this is completed before this time next year. I wrote the Government Leader's words down, "before this time next year".
The Government Leader cannot ask me to accept a commitment on one hand and say that he cannot make a commitment on the other hand.
From listening to the Government Leader speak, I get the very strong impression that all he thinks he has to do to fulfill his commitment to his party and the election promise that he made during his campaign is to have the Legislature pass the legislation saying that we are going to have an ombudsman legislation, access-to-information legislation and conflict-of-interest legislation. There is more to it than that.
It is fine to have the legislation on the books, but it has to be active. People have to be able to see the ombudsman. People have to know that they get access to information, and we have to know that there are some conflict-of-interest rules guiding the behaviour of Members.
The Minister expects me to accept his position that he cannot make a commitment that there will not be an election, but that we should agree to this now, and the part about the act coming into force, because the Government Leader is telling us he will proceed with this legislation before this time next year.
I am sure the Government Leader can appreciate the position he is putting us in as Opposition Members. Frankly, I do not think the public is prepared to accept that position either.
When the public hears that we have passed the legislation in the House, I think the expectation will be that ASAP - which does not mean next year, but as soon as possible - the ombudsman will be put in place. There has to be an ombudsperson in place that people can go to see. People want to know that the new laws governing access to information are going to be in place and that the conflict-of-interest laws will be in place.
The only other opportunity that I see that may present an opportunity is that the Government Leader has made a commitment to call a special session if there is an agreement to be made under the industrial support policy between Loki Gold and the government.
Is there a possibility that if he says he cannot have this person ready and appointed within the next two to three weeks, a month, or whatever time we are going to continue to sit in the House, that this matter could be dealt with at the time that we deal with the industrial support policy?
Hon. Mr. Ostashek: I do not think the Member is understanding what has been said. I will answer the last part of her question later. The scenario I laid out for the Liberal Member was the earliest possible time we could approve the appointment of an ombudsman.
The Member is suggesting that there might be a possibility to deal with this matter if the Members of the Legislature returned to the House to deal with the industrial support policy. I will not give the Member a carte blanche commitment that we could deal with this, but if there was consensus among the Members before the session was called back in to deal with the industrial support policy - I see that as being a one-day sitting. I do not see it as being a long sitting. We will come in and sit until it is passed. If there is going to be a prolonged debate on the appointment of the ombudsman, then I do not believe it will be possible. However, if there was consensus on whatever method we choose to select the person, I see no reason why we would not go ahead and confirm the appointment at that time.
Mrs. Firth: I do not want to get into a big, long debate; however, the comment the Minister made about the Yukon industrial support policy debate only being a one-day sitting - I think that is a little presumptuous, frankly. It could take a week. The Minister is saying that we will sit until it is done, and then said that he anticipated that it would be a one-day sitting. I think that is a dangerous presumption to make, because it may take one day, or five days or two weeks.
All I was doing was offering another alternative to the Minister for us to deal with this matter. My preference, and the preference of the people I represent, is that this matter be dealt with as soon as possible. People want this position in place.
I feel that we could deal with it if we had to, because if we sat down to discuss a process and some names were presented, I think we could get the support of two-thirds of the Members of the House to appoint someone, even on an interim basis, if the Government Leader wants time to look at combining offices and secretariats and whatever. Where there is a will, there is a way. I am certainly prepared, as a Member of the Opposition, and I am sure the other Members are - I have always found them very cooperative in dealing with matters - and we could deal with this in a very expeditious manner.
I do not buy the argument that it is going to take a long time and that we have regulations to do. It is amazing how quickly things can move if there is a will to move quickly. I am talking about the political will to move things, not the bureaucratic will. They are two different stories. If the political will is there, there should be support at the bureaucratic level to support that political will.
I have a great deal of concern about the timing. When does the Minister anticipate getting the Opposition Members to sit down to discuss the establishment of the process? Will that happen immediately after we adjourn this sitting of the Legislative Assembly?
Hon. Mr. Ostashek: I hope that it would happen shortly after the sitting of this Assembly. I do know what British Columbia does to get names for its ombudsman. I sort of like the idea of advertising. I will look at other jurisdictions to see how they go about it. We will get that information and have it ready, and then we can get together very quickly after the session is over. If we go the advertising route, we can make up the ads and get them out.
Mrs. Firth: I would expect that, if we do get called back into the Legislature to discuss the industrial support policy, there is a potential, if there is consensus, to get this office up and running at that time. The Minister has, in a roundabout way, said that he may do that if a whole bunch of things happen. It is in everyone's interest to get it done. People will be prepared to be generous with their time to do it. I do not see it as a problem to be done sooner, as opposed to later.
Mr. Penikett: In his amendments, the Government Leader has gone a long way to deal with concerns that the Official Opposition expressed at second reading. However, there is one matter that has not, to my knowledge, been addressed. That is the provision of clause 14 about the stale-dating of complaints.
The original legislation had a one-year time limit. At second reading, I raised concerns about certain complaints that might be older than that, and whether there might be an injustice created by putting in this limit. I do not have any precise examples to offer. However, it seems to me that someone may have a grievance on a number of fronts - against any one or a number of officials or departments. They may try to rectify it themselves. They may go through their MLA, or they may even write letters to the media. In the course of doing that or of waiting for replies from Ministers, which sometimes takes months, a year could pass. By the time they bring the matter to the ombudsman, it seems to me that it is at least a possibility that the time limit in section 14 could pass.
The section states, "The ombudsman may refuse to investigate or cease to investigate any complaint where in his or her opinion the complainant or person aggrieved knew or ought to have known that the decision, recommendation, act or omission to which his or her complaint refers more than one year before the complaint was received by the ombudsman." I am not sure how a lawyer would read that, but, since I did raise it at second reading, I wonder if the Government Leader has a response to that concern.
Hon. Mr. Ostashek: Yes, I have the response here. I can give it to the Member now, although I was going to do it when we got to the clause. We took great pains to try to answer all the Opposition's questions. Let me give the Member opposite the answers that were given to me.
The ombudsman has the discretion to refuse to conduct an investigation under certain circumstances. This is primarily meant to ensure that complaints that clearly do not have merit do not have to be investigated. It goes on to say that the Leader of the Official Opposition raised a concern about section 14(a), which states that the ombudsman can refuse complaints related to administrative acts that took place more than one year in the past. To that we note that the ombudsman has the discretion to decide whether or not he will refuse to investigate such complaints. I am not saying that he automatically cannot do it; he has the discretion after they are more than one year old to decide whether or not he will investigate it. That is my interpretation of that.
It allows the ombudsman to limit his workload if an unmanageable number of old complaints begin to surface. Investigating old complaints can be extremely difficult, time-consuming and expensive, and the evidence and people involved may no longer be available.
A one-year time limit is consistent with that of other jurisdictions.
Chair: Is there further general debate on this bill?
Mr. Penikett: I raised a question yesterday, which has not been answered. It was one of definitions, which I should probably ask now. It is about government departments and the applications to government departments, particularly the application to the Legislative Assembly. Does the Government Leader have any response to that?
Hon. Mr. Ostashek: It would be exempt. My understanding is that due to the nature of the Legislative Assembly, and because it is not a government department, the ombudsman would not have authority to investigate complaints in the Legislative Assembly.
Mr. Penikett: Since we have had confusion on this point in the past, particularly in terms of access-to-information problems, does the Government Leader not agree that there would be some virtue in making that clear in this legislation, so that the ombudsman does not take it upon himself to investigate what the Clerk or the Clerk Assistant were doing to the Members, for example? There might be some horrible abuse there. I cannot imagine what, but I just gave that as an example.
Hon. Mr. Ostashek: The wording we used in this act is very similar to one in British Columbia. It is not intended to appy to the Legislative Assembly, and nowhere in any other ombudsman act is that specifically addressed.
Mr. Penikett: I believe that is right, and it is the case that the Public Government Act, for example, was drafted by one of the great experts in the nation, who also happens to be from British Columbia. I believe he also drafted B.C.'s law as well. The problem is that British Columbia has a separate constitution, as a member of Confederation. We have this thing called the Yukon Act, which has been the source of some court battles. I think of Mr. Justice Meyer's decision with respect to the French language case, and I also think of Mr. Justice Kearns' decision with respect to the freedom-of-information case that was brought by myself. Our constitutional situation is not as clear as is British Columbia's. If one reads the letter of the law, the Yukon Act gives power to the Commissioner, not to us.
I guess this is what lawyers call "an abundance of caution". I am just suggesting that we should perhaps be especially clear on this point, which is all I am asking.
Hon. Mr. Ostashek: If the Member will bear with us, I would propose that we go through the bill clause by clause and, before it comes to third reading, I will have Justice investigate to see if there is some kind of wording we can put in to give the Member some comfort. Perhaps some of the other Opposition Members would like to get into the debate on this, if they have similar concerns about it.
If not, I will have Justice investigate it and compare it again with other acts, and try to give some satisfaction to the Leader of the Official Opposition.
Mr. Penikett: I want to discuss this in general debate, because I wanted to make certain that all of the issues that I was concerned about are on the record during general debate. This may be bad drafting, I have no idea, but the simple suggestion, it seems to me, would be to state in the definition of section that the department of the Government of Yukon - or whatever the language being used in this bill is - does not apply to the Legislative Assembly. There should simply be a phrase like that.
On Clause 1
Mr. Penikett: I have a problem with clause 1, but I have just suggested an amendment to it, so I wonder if we could stand over clause 1, proceed with the rest of the bill and come back to clause 1.
Hon. Mr. Ostashek: We can stand that clause over. It may help the Member if I provided him with an explanation of clause 1, prior to the amendment.
I have explanations for all of the clauses in the book. If a Member wishes an explanation, please ask for one and I will provide it.
The explanation of clause 1 is a list of authorities under the jurisdiction of the ombudsman is presented in schedule A. This list is consistent with the list in most provincial acts. One exception is the inclusion of the governing bodies of professional and occupational associations established by an act, which only British Columbia has included.
This provision may be controversial, as such bodies may resist being subject to ombudsman investigations. However, these bodies are created by territorial statute and the territorial government is ultimately responsible for their operations. Therefore, it would be inconsistent to exclude these bodies. Also, it is difficult to see why such bodies should not also be held accountable for administrative actions.
Mr. Penikett: I have just had my attention drawn to language on page 5, of Bill No. 77, Access to Information and Protection of Privacy Act, which talks about the application of the act and goes on to say, "but does not include (c) a corporation of which the controlling share capital is owned by a person other than the Government of the Yukon or an agency of the Government of the Yukon, or (d) the Legislative Assembly Office or offices of the members of the Legislative Assembly, or (e) the chief electoral officer and election officers acting under the Elections Act, or (f) a court established by an enactment."
It seems to me - and I suggest this as much to Mr. Horn as to the Government Leader - that that language - which probably came from the same hand or the same department - or something like it, might be useful here.
Mr. Cable: I want to follow up on this. I am sorry; I did not follow everything that the Leader of the Official Opposition was saying because I was tied up with something. What is the Minister's thinking on the Workers' Compensation Board? It would appear to have a similar arm's-length relationship as the college. Is it his intention not to include it within the powers of the ombudsman?
Hon. Mr. Ostashek: We believe that the Workers' Compensation Board is covered under this.
Clause 1 stood over
On Clause 2
Hon. Mr. Ostashek: Clause 2 is one of the clauses we want to propose an amendment to.
Hon. Mr. Ostashek: I move
Bill No. 99, entitled Ombudsman Act, be amended in section 2 on page 1 by substituting the following for the said section 2:
"2. The Commissioner in Executive Council shall, on the recommendation of the Legislative Assembly made by at least two-thirds of the Members of the Legislative Assembly, appoint as an officer of the Legislative Assembly an Ombudsman to exercise the powers and perform the duties set out in this act."
Mr. Penikett: This is a principle that was established in the Public Government Act in 1992 and which we advocated at second reading. We shall therefore be supporting this amendment.
Amendment agreed to
Clause 2 agreed to as amended
On Clause 3
Hon. Mr. Ostashek: This section ensures that the ombudsman will be appointed for a term that will exceed the term of the government that appoints him or her. This may be redundant now that we are appointing the ombudsman by a two-thirds majority of the Legislature. However, I think that it is still a good clause to leave in. This is another measure intended to enhance the independence of the ombudsman from government. An MLA cannot be appointed as an ombudsman. This prevents potential conflict from arising from the ombudsman reporting to the Legislature. It also prevents conflict of interest that might arise due to the fact that an MLA may have difficulty being impartial toward the government.
The Member for Riverdale South asked about the use of the words "may not". "May not" is used here and is grammatically correct. By itself, "may" gives discretion; "may not" produces the opposite - for example, no discretion. "Shall not" could be used instead; it would not change the meaning of the clause at all. If any alternate is used, "must not" is probably better than "shall not", but it is not necessary.
Subsection 3(3) makes it possible for the ombudsman to hold another job or an appointment other than that of ombudsman. This would make it possible to have a part-time ombudsman, or to assign the ombudsman other duties related to other government commissions. It is common in other jurisdictions to explicitly state that the ombudsman cannot undertake other paid work or take other appointments. This is to ensure his/her independence and impartiality; however, allowing either a part-time ombudsman or combining the ombudsman function with other duties could lead to administration deficiencies, reduce overlap and cost savings. In addition, a part-time or combined ombudsman office may be appropriate in the Yukon, given its small size. These issues will be considered as the office is implemented.
Concern has been expressed by the Member for Riverdale South that while a part-time ombudsman is possible, even desirable, in reality the job may inevitably become full time. This is a very valid concern. The B.C. ombudsman office receives approximately 24,500 complaints each year, and has a budget of $4.6 million and a staff of 50. While the Yukon office would be much smaller, it is impossible to predict whether a half-time ombudsman could do the job adequately.
Mrs. Firth: Does other legislation in Canada specify exactly that the ombudsman may not be a Member of the Legislative Assembly? I would ask the Minister why that clause had to be in there specifically. I cannot imagine why it needs to be there, and I find it redundant. I think the conflict-of-interest legislation would disallow Members of the Legislative Assembly from being an ombudsman. I really find it redundant.
Hon. Mr. Ostashek: My understanding is that it is in other ombudsman acts across the country.
Mrs. Firth: Which other provinces have this clause in their ombudsman legislation?
Hon. Mr. Ostashek: Specifically, Alberta and British Columbia, and it may be in other ones as well.
Clause 3 agreed to
On Clause 4
Mr. Penikett: I can anticipate that this clause may be insoluble, but I may as well put my thoughts on the record.
I have noted that in this country - notwithstanding that some things may be constitutionally protected and some things may have a statutory base, or it may even be a contractual commitment - that if a government wants to undermine or defeat the purposes of some piece of legislation, all it has to do is reduce the funding. As we have seen recently, with the national federal government - even where there are longstanding, legal, contractual and perhaps even constitutional commitments - all that the government of the day has to do is reduce the funding to practically zero, and it can render the legislation null and void.
I know that the budget has to come before the House - any budget does - to be approved, but we should at least anticipate the possibility that, in the future, there may be some ombudsman who so annoys the government of the day that the Cabinet decides to fix the rate of remuneration at a very small amount, such as they could not continue to do the job. I do not know of any way to solve that problem, other than perhaps by having the remuneration fixed by the same body that puts it in the budget, the Members' Services Board, but that is not normally its job.
Having identified that there is a potential problem here, I do not know what the solution is, but, given recent Canadian history, I do not think that we should pretend that the possibility does not exist.
Hon. Mr. Ostashek: I appreciate the Member's concern; however, I believe that, if we go the route that I have here - I will explain the reason for this clause - the ombudsman receives a remuneration determined by Cabinet. We agree that this is a very delicate issue. The independence of the ombudsman may be compromised if he or she must negotiate their salary. If they were given an exceptionally large salary, they may feel obligated to the government in power. By fixing the salary, this problem will be reduced.
We are suggesting that the salary could be fixed at an existing salary level in the public service. This would ensure complete neutrality in salary matters. I guess that is aligned with some of the Member's comments, in that we should define it at a pay scale from the Public Service Commission.
In the subsection to that section, where it states that Cabinet cannot reduce the salary without the approval of the Legislature, I think that should cover the Member's concerns.
Mr. Penikett: I hope so, but duress of the Legislative Assembly can be done by a simple majority, whereas the ombudsman has to be appointed by a two-thirds majority. Let us consider the hypothetical situation where the government is so angry with the ombudsman that it decides to reduce the salary. Clearly, it can be done and that can be done as a way of punishment, but let me not get into that. The Government Leader suggested that the salary could be fixed at a commensurate level in the public service. I guess we use the analogy of judges, where there is a fixed amount. Was there any consideration given to saying that the ombudsman is doing work of this quality, of this character and whether they are part-time or full-time, the rate of pay should be equivalent to - I do not know. I never did know those funny numbers in the public service, an AR50 or an MR4000, or whatever they are called - an assistant deputy minister, or deputy minister of a small department? I am not recommending that. I am just wondering if any consideration was given to that? Perhaps the position would be getting the same salary as the Clerk, or something like that.
Hon. Mr. Ostashek: Like I said, we have not gone into the mechanics of how the salary is going to be set. That has not been discussed yet, even in Cabinet and caucus. We felt that there should be some clause in the bill to address remuneration that is paid to the ombudsman, and how it will be administered.
I can understand the Member's concern, but even with just the fact that the Cabinet would have to come back to the Legislature - and so, they had a simple majority. It would get a public airing and they would be accountable to the public through this Legislature, which I think would keep restraint on any Cabinet from acting inappropriately.
Mrs. Firth: That last comment that the Minister just made kind of made me smile.
The concern I have with respect to this clause is that the Minister is going to propose another amendment to this bill concerning the budget - that the ombudsman shall submit an estimate annually to Members' Services Board that will be provided to the Legislative Assembly to defray the charges and so on. I have some concern about the relationship between that and this clause, because in that budget will be included the salary for the ombudsman. I am just wondering if there is not some other way for the salary to be set. I have some concern about the Members' Services Board doing it, but I will wait for the Minister's explanation about that. Instead of the Cabinet setting the salary level, perhaps whoever is determining the budget and authorizing it may be the appropriate level at which the salary is set.
I have a little bit of concern about it being classified as an MG4 or whatever the classification may be. Once the Public Service Commission becomes involved, it may require certain language to be used. Otherwise, the ombudsman is being paid a salary and does not have to meet all the qualifications. I really think the qualifications will be determined by this group that sits, and then approved by two-thirds of the Legislative Assembly.
As opposed to simply agreeing with clause 4(1), where the Commissioner in Executive Council or the Cabinet sets the salary, perhaps we could look at having the salary set in some other manner.
Hon. Mr. Ostashek: I do not know that we can improve on this clause. While the Members' Services Board will review the budget for the office, the monies will be appropriated by the government and Finance. I cannot see why the Members' Services Board should be involved in setting the salary for the position.
Some Hon. Member: (Inaudible)
Hon. Mr. Ostashek: No, it will not set the budget; it will review and approve the budget, rather than it being approved by the Legislative Assembly, by the Clerk or the Speaker. This takes the onus off the Speaker in that case, and we will discuss that when we come to that section.
I feel quite comfortable with this, and I believe that I would feel comfortable with it even if I was in Opposition, because if a Cabinet has to come back to this Legislature for an intense debate for cutting an ombudsman's salary, I believe that is the accountability that we should be looking for, and it is built into this act.
Mrs. Firth: If the salary is cut then we do not have an ombudsman any more, and that would be my concern. If the salary is cut and we are not sitting in the Legislature - and will not be sitting for six or seven months - then we have no ombudsman for that period of time, and that would be a concern.
Hon. Mr. Ostashek: From my interpretation of this act, I do not believe Cabinet would be allowed to cut the salary of the ombudsman. The salary would have to be approved by this Legislature. I do not believe the Cabinet would dare to cut the salary without the approval of the Legislative Assembly.
Mr. Penikett: I do not want to belabour this point, but it seems that there is an obvious scenario where what Mrs. Firth is suggesting could happen. One could have, in the build up to a general election, an ombudsman appointed by two-thirds agreement of the House by party A and party B, and party C wins an overwhelming majority in the coming election and comes in and decides that, notwithstanding the decision of the House to make a five-year appointment, it is going to cripple the ombudsman's office by reducing the ombudsman's salary, and they have a fairly simple time in getting the motion through the House by a simple majority. It may well be argued that this is not a likely scenario, but we should at least admit that it is a possibility, and that it is a possibility that is actually created by this law.
Hon. Mr. Ostashek: If the Members do not feel comfortable with that, I can set it aside and take another look at it, but, to be truthful, I do not think we are going to be able to improve on it.
Mr. Penikett: I appreciate the Government Leader's willingness to take another look at it. Let me make one suggestion. The simplest way of doing this, if we are going to maintain the language about the Executive Council doing it and it going to a vote - I think clause 2 is a good provision - but to get symmetry, clause 2 should say two-thirds majority, not a simple majority, because if we have two-thirds majority to a point, if we are going to have a power that essentially amounts to disappointment or removal from office, it probably should have a similar majority. That is the only point I would make.
Hon. Mr. Ostashek: If the suggestion by the Leader of the Official Opposition will satisfy the Legislative Assembly, I will bring back an amendment to that effect. I do not have any difficulty with that, and if that will satisfy the clause and give the Members some comfort, we can stand that one aside.
Clause 4 stood over
On Clause 5
Clause 5 agreed to
On Clause 6
Mr. Penikett: Is this necessary, given what the Government Leader has explained about the intentions of the government in respect of the appointment? Presumably this language is here because the government has anticipated a scenario other than the one that faces us. Perhaps the Minister could elaborate on what the circumstances might be where a temporary appointment might be necessary.
Hon. Mr. Ostashek: The explanation that is given for the clause is this: in cases where the Legislature cannot or will not recommend an acting ombudsman, Cabinet can appoint an acting ombudsman - if needed - without the recommendation of the Legislature. This ensures that the ombudsman's position can continue to be filled in temporary periods when the Legislature is not sitting, or when a recommendation is not forthcoming for some other reason. The duration of acting appointments that have been made by the Cabinet without a recommendation from the Legislature are strictly limited. This ensures that the Legislature will have the opportunity to make a recommendation on the status of the ombudsman within a reasonable period of time.
Clause 6 agreed to
On Clause 7
Clause 7 agreed to
On Clause 8
Clause 8 agreed to
On Clause 9
Hon. Mr. Ostashek: I believe clause 9 is one that we are going to be amending and I would introduce that amendment now.
Hon. Mr. Ostashek: I move
THAT Bill No. 99, entitled Ombudsman Act, be amended in subsections 9(1) and 9(2) on pages 4 and 5 by substituting the following for the said subsections:
"9.(1) The Ombudsman shall submit annually to the Members' Services Board in respect of each fiscal year an estimate of the sum that will be required to be provided by the Legislative Assembly to defray the several charges and expenses of the Office of the Ombudsman in that fiscal year.
"(2) The Members' Services Board shall review the estimate submitted pursuant to subsection (1) and, on completion of the review, the Speaker shall transmit the estimate to the Minister of Finance for recommendation to the Legislative Assembly."
Deputy Chair: Is there any debate on the amendment?
Mr. Penikett: Again, I raised questions about the unilateral power of the Speaker in this matter and I think having this dealt with by the Members' Services Board is an improvement.
Mrs. Firth: I understood the Members' Services Board dealt with the Members of the Legislative Assembly and only the Members of the Legislative Assembly and their budgets.
Could the Minister give me the rationale about why this should go through the Members' Services Board, as opposed to going through another department?
I was trying to think of comparable instances. I know that appointments made to the Human Rights Commission are endorsed by the Legislative Assembly, and that is by a clear majority, but that budget goes through the Department of Justice. What is the explanation and the rationale for this going through the Members' Services Board?
Mr. Penikett: Before the Government Leader answers, let me offer my own view on this. I would argue that, because this position is an officer of the Legislature, this is an appropriate direction to take. Were I the one responsible for writing the Human Rights Act today or recommending amendments to the Human Rights Act, I would rather that the Human Rights Commission budget came through the Members' Services Board than through the Department of Justice.
Hon. Mr. Ostashek: To answer the Member's question, the concern here is - the Leader of the Official Opposition has pretty well summed it up - that we do not feel it is appropriate for the Speaker to be approving the budget. The only other vehicle is the Members' Services Board.
Amendment agreed to
Clause 9 agreed to as amended
On Clause 10
Mrs. Firth: Will the oath that is going to be taken be similar to the oath that is taken by Members of the Legislative Assembly or by public servants? What exactly will it be?
Hon. Mr. Ostashek: My understanding is that it will be similar to what Cabinet Ministers and Members of the Legislative Assembly take.
Mr. Penikett: Those oaths are written in antiquated language, and they are ambiguous. I think one of the things that we are supposed to do when we swear the oath is not to disclose information about any matter that comes to our attention. That seems to be a strange thing for us to swear to do because we are in the business of doing the very opposite of that. I always assumed that meant either Cabinet confidences, when one is a Minister, or private information, when one is dealing with a citizen. I do know of one case where an Opposition researcher refused to swear the oath because the Opposition researcher believed it was his job to expose government secrets and, in fact, he was hired without having signed the oath.
I do not want to hold up the section, but I serve notice that there may be good reason, at some point in the near future, to actually have a look at the language of oaths because I think they do not communicate anything right now.
Clause 10 agreed to
On Clause 11
Mr. Penikett: I have one question about clause 11, which is like clause 4 - what I call the "punk provision". It would allow a Minister who is in some trouble on some issue to actually send it into the ombudsman's office, perhaps as a way to get it off the floor. As a former Minister, I can see immediately the potential usefulness of that clause. Can I ask the government if it had anything else in mind other than that useful device? Did the government have any specific cases it had in mind to refer from the Legislature to the ombudsman?
Hon. Mr. Ostashek: I do not have a briefing note on that. It has been taken from other acts and incorporated into this one. I think the Member raises a very valid question. I do not have any examples for the Member, but perhaps some of the debate that we have sometimes on such matters as, for example, the inequity of the Workers' Compensation Board, can be referred to the ombudsman by the Legislative Assembly.
Clause 11 agreed to
On Clause 12
Clause 12 agreed to
On Clause 13
Hon. Mr. Ostashek: Clause 13 will be amended.
THAT Bill No. 99, entitled Ombudsman Act, be amended in subsection 13(2) on page 9, by substituting the following for the said subsection:
"(2) Every person who complains to the ombudsman shall:
"(a) give his or her full name, address and telephone number, and the full name, address and telephone number of any other person whose interests are affected by the complaint;
"(b) state the facts which constitute the basis of the complaint; and
"(c) provide the Ombudsman with any information or document which the Ombudsman considers necessary for a clear understanding of the facts.
"The Ombudsman may require that the complaint be made in writing where he or she considers it is necessary."
This was in response to the concerns of Mr. Penikett that we may have people who are illiterate who want to complain to the ombudsman.
Mr. Penikett: The Government Leader is correct. I expressed a concern in second reading about this, because it is my view that people who are most vulnerable to abuse of authority are the weak and the powerless. The people who can easily be victims of bureaucratic runaround are people who do not have communication skills, or who may not be able to read and write English, and the requirement that they have to file a complaint in writing was harsh.
There is a remnant of the language in the final sentence of the amendment, which says that the ombudsman may decide that it may be necessary to put a complaint in writing. It is not unreasonable if a member of the local bar comes into the office and has a complaint, I think the ombudsman might reasonably ask them to demonstrate their education and their learning by putting it in pen and ink, but if some indigent member of the community or some elder who does not have good writing skills comes in with a complaint, I think they should still be able to make it, regardless.
Hon. Mr. Ostashek: I agree with what the Member says. The only provincial act that makes allowances for verbal complaints is Quebec's Public Protector Act. That act was used as a model for this amendment.
Amendment agreed to
Clause 13 agreed to as amended
On Clause 14
Mr. Penikett: I raised a question about this in Committee. The Government Leader has responded that the one-year time limit is a discretionary power by the ombudsman, and I accept that. Although, in his explanation, he talked about a problem of economy, if you like, where the ombudsman may have a volume of complaints and has to exercise discretion. I am sure Mr. Horn, as a lawyer, might have a different view, though, that questions of justice ought not to be subject to narrow questions of economy. If there are a lot of problems with harsh or unkind administration, I would hope that the ombudsman would have the means to deal with most of them, but I do not think I would add anything or recommend an amendment here.
Clause 14 agreed to
On Clause 15
Clause 15 agreed to
On Clause 16
Mr. Cable: I signaled to the Minister in second reading that I wondered how far this person, male or female, could go in getting inside the premises of the bureaucracy. I indicated that, in my wildest fantasies, this person could just barge in one day, break down doors and flip open filing cabinets. I gather that is not what is intended.
Just what sort of physical powers does this person have, in the Minister's view? It would save me from trying to decipher all of this - I was going to say legal mumbo-jumbo, but my confrere is sitting here, so I will not make any comments. What does the Minister see as the powers of this person to acquire documents, for example, and get information? Could he give us an encapsulation of what all of this lingo means - this three-quarters of a page of lingo?
Hon. Mr. Ostashek: My staff has been kind enough to give us a couple of paragraphs. I do not know whether it is going to clarify for the Member opposite what the legal text of the document does. It is noted that the Member had indicated that he would be asking further questions about the scope of subsection 16(2). The basic explanation is that this subsection gives the ombudsman a generous range of investigatory powers that are consistent with those provided in other jurisdictions. There would be no restrictions on the ability of the ombudsman to successfully complete investigations.
I would presume that the ombudsman could not go knocking down doors and tearing up filing cabinets. There are legal processes in place for obtaining information and those will all be available to the ombudsman. I believe I have already answered, in general debate yesterday, the concerns of the Leader of the Official Opposition about why the documents would have to be returned within 48 hours.
Mr. Cable: The Minister indicated that the provision is similar to the provisions in other jurisdictions' legislation. Has his official determined whether there have been any problems about other ombudsmen securing cooperation from the public service in other jurisdictions?
Hon. Mr. Ostashek: I just consulted with my official and I am also aware through news reports that there have been occasions in the past where ombudsmen were having difficulties getting information. That is really the basis behind the description that is given here and the broad powers that are given to the ombudsman. It is because there have been instances in the past in other jurisdictions. I do not know exactly what their legislation states, but ombudsmen were being stonewalled for information.
Mr. Cable: Just for my comfort level, is the Minister saying that the provisions that were copied from other jurisdictions have dealt with the problems that were perceived by the ombudsmen?
Hon. Mr. Ostashek: Yes, that it is correct.
Mrs. Firth: Clause 16, "Power to obtain information", gives the ombudsman some ability to make decisions with respect to whether or not the information is needed, and it gives the ombudsman the ability to require people to furnish information. When I look at clause 18, which deals with Executive Council proceedings, what happens here is that the powers of the ombudsman, all of a sudden, come under the jurisdiction of the Minister of Justice when it comes to matters dealing with the Executive Council Office. This clause essentially says that, where anything is relevant to the Executive Council Office, it could be deemed to be secret or confidential, and the ombudsman shall not enter the premises and shall not obtain the information. It is the Minister of Justice who makes that determination. That somewhat reduces the powers of the ombudsman, which are given in the previous clause. Perhaps the Minister could explain, using some examples, to illustrate why this is the case.
Hon. Mr. Ostashek: As the Member opposite is aware, the Executive Council Office deals with Cabinet documents, which are of a confidential nature, so there has to be a judgment call at some point. The explanation I have for clause 18 states that "Section 19 makes it clear that the public interest rule, which authorizes the withholding of information, the disclosure of which would be injurious to the public interest, does not apply to the ombudsman investigation." So, clause 18 provides that there are cases where the Minister of Justice may certify that information of this type is to be withheld from the ombudsman. Similar clauses are found in all other jurisdictions.
Mrs. Firth: Could the Minister give us an example of information that the ombudsman may be seeking, and where he thinks the Justice Minister would have to step in and say that the ombudsman could not have it? I find that when we are dealing with legislation, it is always made more clear if an example is presented to justify why the clause is needed.
Hon. Mr. Ostashek: We have a hypothetical case here, and I will try to explain it to the Member in the terms provided to me.
There may be an occasion where Cabinet has instructed a Minister to carry out something, while at the same time there may be an investigation of that Minister by the ombudsman, in relation to a complaint in the department. The information that the ombudsman would be looking for could be subject to Cabinet secrecy. That is why that clause is in the bill.
Mrs. Firth: I would be concerned if the ombudsman was investigating a case and trying to find out whether or not there was an injustice done at the bureaucratic level, or whether it was a ministerial or Cabinet decision. I think the ombudsman should be able to find that out. I am somewhat concerned that the ombudsman may not be able to get this information, because the Minister of Justice might say that is Executive Council information, which is privileged, and the ombudsman would not be able to have that information.
I think it is important that the ombudsman be able to determine where the cause of the problem was, or where the original decision was made, that has caused this citizen to come in and ask for help.
I have some concerns about this clause, because it seems that in one clause we give the ombudsman this power, but we take it away in another clause. I do not know if we could make the clause more specific, but I do have some concern about the potential abuse of it, and it being used as an excuse for the information not to be given.
Hon. Mr. Ostashek: If the Member would look through the clauses of section 18 and look below (c), it says, "... the ombudsman shall not enter the premises and shall not require the information or the answer to be given or the document or thing to be produced, but shall report the making of the certificate to the Legislative Assembly not later than in his or her next annual report." The Legislative Assembly could then take up the issue of why the ombudsman was refused that document. There is a check and balance of some sort in there.
Mrs. Firth: But if we are having one sitting of the Legislative Assembly and it is six or seven months later, the issue is long gone by that time. I see it as, "Here is your power, but we are just going to take a little bit back from you." I do have quite a bit of concern about this particular clause, because I think that it could be used in many cases to deny information.
Mr. Penikett: I do not want to join this particular point, but there are a number of interesting relationships between the ombudsman and the Legislature being contemplated here. For example, in looking back to clause 11(4), which I raised questions about, I wonder if the Government Leader could indicate if the drafters were aware that in our system, legislative committees can only do things when they are authorized to do so by the Legislature, so if committee A wants to investigate matter X, it has to receive a mandate or a resolution of the House to do so.
I am just thinking about the questions raised by Mrs. Firth, but thinking about another angle.
Let us say that there was a minority government and the committee of the House decided that it wanted to investigate a matter for which it received no instructions, but we have given the Legislative power here to allow the committee to go and refer a matter to the ombudsperson - I guess you could argue that they really have no other power than that enjoyed by any citizen - so it is not a serious problem there, but the language is interesting because it says "the Legislative Assembly" - which is fine - "or any of its committees", which implies that a committee might be able to do something that the Legislature had not asked it to do or even authorized it to do in respect to giving work to the ombudsman.
It is not a huge problem for me, because any one of those Members can go to the ombudsman and say there is a problem and will they look at it.
I am curious - just as a factual question - if the drafter was aware that committees here can only do things when they are instructed to do so by the Legislature.
Hon. Mr. Ostashek: Yes, I believe that the drafters were. I do not see a contradiction there. The committee, in order to refer matters to the ombudsman, would have to have instruction. If the law says that committees here cannot do anything without the approval of the Legislative Assembly then, automatically, the committee would have to get that approval before it could be referred to the ombudsman.
Mr. Penikett: I am content to have that on the record.
Clause 16 agreed to
On Clause 17
Clause 17 agreed to
On Clause 18
Mrs. Firth: If there were some kind of overlapping jurisdiction between the ombudsman's office and the Human Rights Commission, the Minister of Justice, who is responsible for the Human Rights Commission, could possibly use this section to deny information for which the ombudsman's office is looking. Would that not be considered to be a conflict and is there a way to deal with it?
Hon. Mr. Ostashek: I do not know how the Member arrived at those assumptions. In my opinion, section 18 spells out certain circumstances in the course of the ombudsman's investigation where the Minister of Justice has the right to intervene and withhold information. It should have nothing to do with an investigation by the Human Rights Commission. That would be a separate investigation, not one that was ongoing by the ombudsman.
Mrs. Firth: I have a lot of reservations about this clause. I am trying to find some examples for the Minister where I see there could be potential abuse of the powers of the Minister of Justice, and potential conflicts that could be raised. I will not hold up the whole clause-by-clause debate. If difficulties with this clause present themselves, I can always come back and propose an amendment when we sit again.
However, I want it clear on the record that I have reservations with respect to this clause and the potential for abuse, and that it could be used as an excuse to deny information.
Clause 18 agreed to
On Clause 19
Hon. Mr. Ostashek: This displaces the public interest rule of common law so the ombudsman can get to the bottom of things. It refers to the note on section 18 that I just read out a while ago. I will read it again for the Leader of the Official Opposition.
Section 19 makes it clear that the public interest rule, which authorizes the withholding of information, the disclosure of which would be injurious to the public interest, does not apply to an ombudsman's investigation. Section 18 provides for that so we could withhold certain information.
Hon. Mr. Ostashek: This is the same as in Ontario, British Columbia, Alberta and Saskatchewan.
Mr. Penikett: I do not know how to proceed here. The explanation sounds contradictory to me. It is not clear, when I look at clauses 18 and 19 together, if we are sanctioning the withholding of certain information by the government, authorizing the ombudsman to circumvent that sanction, or both.
Hon. Mr. Ostashek: Section 19 states, "subject to section 18", which sets out specific areas where a document can be withheld. It could be withheld under section 18. What can be done is quite narrow. So it states, "subject to subsection 18, the rule of law that authorizes or requires the withholding of a document or a thing, or the refusal to disclose a matter in answer to a question on the grounds that the production of such disclosure would be injurious to the public health does not apply to the production of a document or a thing, or the disclosure of the matter to the ombudsman." What I am saying is that section 19 is there to just clarify section 18, by saying that the ombudsman can produce the document, other than for those specific areas where he is denied access to them.
Mr. Cable: I guess we are all having trouble walking through this. In section 19(1) we are talking about a rule of law, and then in section 19(2) we are talking about an enactment. So that we can get our heads around it, could we have an example of something that would fall under 19(1), and then could we have an example of the exemption under 1(2)? Does the Minister's official have something that he can give us that we can relate to?
Hon. Mr. Ostashek: I think that we are getting ourselves wrapped around this - or trying hard to - as we do with some of this text. Section 19 is a broad rule of law, which is somewhat limited by section 18. I think that is where we are getting confused. All that section 18 does is put some limits on that broad rule of law - on the powers that the ombudsman has. The powers are limited by section 18.
I do not know what we could use for an example in subsection 19(2). It is subject to section 18, and to subsection 19(4), which basically limits the amount of information that the ombudsman has access to because of the specific reasons set out in section 18. I do not have an example that I can give the Member right now. I do not have anything other than the explanation in my book.
Mr. Cable: I think the draftsman of the legislation is sitting here today, so I would assume that he has some examples. When we talk about a rule of law that authorizes or requires a withholding of a document, are we talking about those common law rules that appear to be codified in section 18 above? Is that what we are talking about when we say rules of law, or is it something more?
Hon. Mr. Ostashek: My draftsman is trying to get an explanation for you on this issue right now to see what we can do with it.
Perhaps we could set this clause aside and come back to it when the draftsman has completed writing the explanation.
Clause 19 stood over
On Clause 20
Clause 20 agreed to
On Clause 21
Clause 21 agreed to
On Clause 22
Clause 22 agreed to
On Clause 23
Clause 23 agreed to
On Clause 24
Clause 24 agreed to
On Clause 25
Clause 25 agreed to
On Clause 26
Mr. Penikett: I have a particular problem with clause 26, but one of the problems that I think we are going to have is the problem with the English. It is not as plain as it could be. It is probably legally precise for good reasons. The Government Leader indicated that he saw the necessity of a period of public information, or communication, about this office and this role before it was fully operational. Is it the Government Leader's intention that the ombudsperson - he or she - should be conducting that information campaign, or is that something that the Executive Council Office, or some other department of government expects to carry out?
Hon. Mr. Ostashek: What I would see happening is that the Justice department or the Executive Council or Legislative Assembly Office, which this falls under, could have a broad information campaign to try to inform the people about what the office of the ombudsman does. As we get more into the legalities of it, it may be useful, once the ombudsman is appointed, for the office to implement some sort of a communications strategy by newspaper advertisements explaining different clauses of the act, or a number of different things. It may be useful for the office to continue to do that.
The communication strategy I was talking about is a much simpler process, that being to familiarize the public with what the office of the ombudsman could or could not do for them. I do believe that there are many misconceptions in the public about what the ombudsman office can do. I do not doubt that there is going to be a certain number of our constituents who are going to be very disappointed to find out that the office of the ombudsman is not the be-all and end-all to their concerns.
Mrs. Firth: I am not sure if we have cleared clause 25 or not, but I have a concern about it.
Chair: We cleared it.
Mrs. Firth: Where it states that a report may be submitted by the ombudsman if the ombudsman believes that no suitable action has been taken, does that mean that if the authorities do not do what the ombudsman recommends, within a reasonable amount of time, then the only thing the ombudsman can do is make a report to the Commissioner in Executive Council and to the Legislative Assembly? Is that all the ombudsman is able to do?
Hon. Mr. Ostashek: My explanation for clause 25 is: "If an authority fails to act on a recommendation, the ombudsman can submit a report to Cabinet, and subsequently to the Legislature, as considered appropriate by the ombudsman. This is intended to give the ombudsman the ability to exert indirect pressure on an authority to address the recommendations." So, yes, that would be the scope. The ombudsman cannot order - and I think that is some of the fallacy of this act; people have misconceptions about what the office of the ombudsman will do.
Chair: Clause 25 has been carried, Mrs. Firth. We are on clause 26 now, but we can go back to the previous clause.
On Clause 25
Mrs. Firth: I want to go back to clause 25, because I do not want to limit the ability of the ombudsman to make issues public. There are other ways to exert pressure than just sending a report to Cabinet and the Legislative Assembly. If a department is failing to follow through with recommendations made by the ombudsman, is it at the discretion of the ombudsman to decide how to deal with that, and this is just one of the ways they can do it? I do not want the ombudsman to be told that they cannot do anything else if the department is not doing what they have recommended. I do not want the ombudsman limited in their ability to exert pressure on the department to follow through with the recommendations. I can think of other ways that pressure can be exerted.
The Minister is waving his hand around, asking for an example. I do not want the ombudsman to be limited in that they cannot go public with an issue. If Joe Smith comes to see them and an issue develops and recommendations are made to department A, B, C and the department refuses or ignores them, and know that they have six months or so to go until the House sits and it comes before the Legislature, or they just refuse, telling the ombudsman to take the report to Cabinet, I want to know that the ombudsman has other avenues at their discretion in order to put pressure on the department to follow through with the recommendations.
Hon. Mr. Ostashek: There is nothing in this clause that stops the ombudsman from doing that. This just says that another avenue for him is to address it in his report to the Legislature. There is nothing to stop the ombudsman from going public if he is dissatisfied with the actions that are being taken by a department.
Mr. Cable: Section 26 appears to be taken verbatim from section 25 of the B.C. bill.
There appears to be an inference from section 26 that the authority is notified first and then the complainant.
Some Hon. Member: (Inaudible)
Mr. Cable: We are on section 26, but it refers back to section 23 and 24. Is it the intention of the Minister that the authority be informed and be given reasonable time to respond, and then the complainant be advised of the disposition of the complaint?
Hon. Mr. Ostashek: My understanding of section 26 is that the ombudsman will inform the complainant in cases where the authority fails to act on the complaint. This is another avenue, pursuant to sections 23 and 24. This is an additional means by which the ombudsman can indirectly put pressure on authority to address recommendations.
Mr. Cable: Just going back through the two sections, is it the Minister's position that when the ombudsman makes the report to the authority and makes recommendations - that is at the end of section 23(1) - the report is given to the complainant at the same time? That is certainly not the inference of section 26.
Hon. Mr. Ostashek: The explanation I have for section 23 is that if a complaint is in some way substantiated, the ombudsman must report to the authority and make appropriate recommendations. This ensures that the investigations are carried through to their logical conclusions.
All provincial ombudsmen have this power, with some variation. Subclause 23(5) is unique to British Columbia and New Brunswick; paragraph (b) confers the powers on the ombudsmen, which is only given by British Columbia, New Brunswick and Quebec acts; paragraph (c) is unique to British Columbia and New Brunswick.
We have taken the best from all the acts we could use.
In section 24, the ombudsman may request that an authority notify the ombudsman of the steps being taken to address the recommendation. This ensures that the ombudsman can monitor the implementation of his or her recommendations.
Section 26 gives additional means to the ombudsman to indirectly put pressure on the authority to address the recommendations. It enhances sections 23 and 24.
Mr. Cable: I do not think I am making my point. From reading those sections together, it appears that the complainant is notified after the fact - after the authority has been notified and had time to respond to the complaint and recommendations. Is that the intent of the bill? Was that the intent of the drafter?
Hon. Mr. Ostashek: The intent of the act is that the complainant would be notified after recommendations were given by the ombudsman to the department for implementation. If the department did not implement the recommendations, then the complainant would be notified that the recommendations suggested by the ombudsman were not implemented.
That is not to say that the complainant would not be advised of the decision made by the ombudsman when he has made recommendations for corrective action.
Mr. Cable: That is not to say that the ombudsman would not be, but the act does not say that the ombudsman is obliged to give the complainant the recommendations.
If the complainant is going to put the heat on the government to respond, the complainant should receive the recommendations at the same time the authority does.
Hon. Mr. Ostashek: The language in the act is not specific, but it is left to the ombudsman to make that decision, more than anyone else's at that point. The ombudsman may want to rectify the problem prior to the complainant being notified, or he or she may decide to notify the complainant immediately. There is nothing to stop him from going either way.
Mr. Cable: There is only the inference in section 26, but let me put this hypothesis to the Minister: let us say the public authority does in fact comply. How is the complainant to know? This section 26 is only triggered when the public authority does not comply.
Hon. Mr. Ostashek: There is another section in the act that addresses that - the complainant will be notified.
Chair: Is there further debate on the clause?
Clause 25 agreed to
Clause 26 agreed to
On Clause 27
Clause 27 agreed to
On Clause 28
Mr. Penikett: I am not a lawyer, so I do not know what this clause is intended to do. I guess the simplest way I can express it is: why do we need this clause? Could we get an explanation?
Hon. Mr. Ostashek: It was written so that every time the ombudsman conducts an investigation, he would not be obligated to do it as a judicial, tribunal or court investigation.
Chair: Is there further debate?
Mr. Penikett: I do not understand the purpose. It says, "An inquiry or a proceedings of the ombudsman shall not be challenged, reviewed or called into question by a court, except on the ground of lack of or excess of jurisdiction." So someone could go to court and say that the ombudsman does not have jurisdiction here. That is fine, but are we attempting to limit a citizen's right to challenge what the ombudsman is doing? If we are, do we have the legal ability to do that, just by way of the Ombudsman Act? That is really the question I would ask.
Surely if a citizen was offended by the ombudsman - and let us admit that that is a possibility - I do not understand how this clause could take away rights they would otherwise have to go to court and complain about the matter.
Hon. Mr. Ostashek: The intent of the clause is specifically to stop a person or the government, and more often the government, from going to court to challenge a review or an investigation that the ombudsman is undertaking. It is for the protection of the impartiality of the ombudsman's office. It cannot be challenged by either a citizen or by the government. In more cases than not, it would probably be the government that would be trying to stop an investigation.
Mr. Penikett: I can quite understand why we would want to put in a provision here that says that we should not encourage the government to frustrate the activities of the ombudsman. I think that is a good thing; I am not arguing with that. However, what I am raising a question about - and forgive me if I appear to be asking a legal opinion - is that I do not see how, given the language in this clause, it could prevent a citizen from exercising rights they have under other laws to challenge what the ombudsman may be doing. They may think, for example, that the ombudsman may be invading privacy or something while carrying out an investigation, or may be offending their rights under the Charter. I cannot think of a precise case, but I am sure there would be such circumstances.
Let me invent one on my feet: a department or branch is complained against and the manager of the branch thinks that the complaint is malicious or personal or offends against their civil rights in some way and goes to court to challenge the ombudsman's investigation. This is a two-part question. Would this clause prevent them from doing that - I doubt it. If it could, I guess the question would be this: does this act take precedence over a whole bunch of other legislation, including federal law? I doubt that it would.
Hon. Mr. Ostashek: Our explanation is that it tends to limit the citizen or government, but it does not stop them from going to court; they can still do that.
Mr. Cable: The Member has asked me, with my great fount of legal knowledge, to indicate what I had just said to him. In the Municipal Act, there is a clause, called a privative clause, and it prevents a review of the Municipal Board's decisions, except in areas where a move is made to quash a decision on the grounds of jurisdiction - the lack of jurisdiction or the excess of jurisdiction. I think that this is a similar clause. Perhaps the Minister's official could indicate whether or not that is the thinking.
Hon. Mr. Ostashek: Yes, that is entirely correct.
Clause 28 agreed to
On Clause 29
Clause 29 agreed to
On Clause 30
Clause 30 agreed to
On Clause 31
Clause 31 agreed to
On Clause 32
Hon. Mr. Ostashek: This is another clause we are amending.
Hon. Mr. Ostashek:
THAT Bill No. 99, entitled the Ombudsman Act, be amended at section 32 on page 19, by substituting the following for the said section 32:
"32.(1) A person must not
"(a) without lawful justification or excuse, intentionally obstruct, hinder or resist the Ombudsman or another person in the exercise of his or her power or duties under this act;
"(b) without lawful justification or excuse, refuse or intentionally fail to comply with a lawful requirement of the ombudsman or another person under this act;
"(c) intentionally make a false statement to or mislead or attempt to mislead the Ombudsman or another person in the exercise of his or her powers or duties under this act; or
"(d) violate an oath taken under this act.
"(2) A person who contravenes subsection (1) commits an offence and is liable to a fine of up to $5,000."
Mr. Penikett: The only changes from the original act that I can see is a slight change in language at the beginning from "A person commits an offence who ..." et cetera, to the new language in section 32(1)(a), which says, "A person must not", and there are some consequential amendments in verb form under there, and then the addition of the fines of up to $5,000 for this offence. Am I correct in my reading of the amendment?
Hon. Mr. Ostashek: Yes, the Member is correct in that.
Amendment agreed to
Clause 32 agreed to as amended
On Clause 33
Clause 33 agreed to
On Clause 34
Clause 34 agreed to
On Clause 35
Hon. Mr. Ostashek: This clause will be amended, and it is a little bit different from the amendment that I circulated yesterday. I have some other copies here for the Members.
Hon. Mr. Ostashek: I move
THAT Bill No. 99, entitled Ombudsman Act, be amended in section 35, on page 20, by substituting the following section 35, entitled "Repeal, continuation and coming into force.
"35.(1) Subject to subsection (2), this Act shall continue in force for a period of five years from the day on which it came into force, and no longer.
"(2) If at any time while this Act is in force, an address is presented to the Commissioner by the Legislative Assembly praying that this Act should be continued in force for a further period, not in any case exceeding five years, from the time at which it would otherwise expire and the Commissioner in the Executive Council so orders, this Act shall continue in force for that further period."
"(3) This Act comes into force on a date to be fixed by the Commissioner in Executive Council."
Chair: Is there any debate on the amendment?
Amendment agreed to
Clause 35 agreed to as amended
On Schedule A
Mr. Penikett: Let me recommend that we do not clear Schedule A. Because of the question that I raised earlier about clause 1, it may be more appropriate to fix it in Schedule A. I would recommend that we stand this over.
Schedule A stood over
Chair: Is it the wish of the Members to take a brief recess?
Some Hon. Members: Agreed.
Chair: We will take a brief recess.
Chair: I will now call Committee of the Whole to order. We are dealing with Bill No. 99.
On Clause 19 - previously stood over
Hon. Mr. Ostashek: I have instructed the drafters to try to draft the amendments to satisfy the Opposition Members. I think that we can probably clear section 19. I have an explanation here now. If we can clear that, there will just be the two outstanding sections that we are proposing amendments to, but we will bring those back at a later date.
My explanation of section 19 is this: if section 19(1) did not exist, there are several government officials who could argue that the general rules against disclosure of information injurious to the public interest means that they could withhold documents from the ombudsman. Examples include legal opinions and Cabinet discussions that are not withheld by the Minister of Justice under section 18.
Section 19(2) protects the public officials who cannot, by law, disclose information, such as officials in the Department of Health and Social Services. That is the rationale for section 19.
Chair: Is there further debate on clause 19?
Clause 19 agreed to
Hon. Mr. Ostashek: Mr. Chair, I move that you report progress on Bill No. 99.
Motion agreed to
Chair: We will move on to Bill No. 71, entitled Engineering Profession Act.
Bill No. 71 - Engineering Profession Act
Chair: Is there any general debate?
Hon. Mr. Phillips: A couple of questions were asked in second reading by the Members, and I have answers to those.
Mr. Cable asked if the bill should be changed to require a two-thirds majority of the Members present in a general meeting to make the rules. This bill was introduced at the request of the Association of Professional Engineers. The association, itself, asked for this majority rule, and has assured me that this provision has received its members' approval. The association has adopted a fundamental democratic approach to making rules. This process gives all members the right to vote; however, it does not carry with it the obligation to vote.
The two-thirds rule put in place for the Legal Professions Act was requested by that profession and approved by its members. Each profession has freely chosen how they want to ratify their rules, and this is their prerogative. The regulations that can be established by the association under Bill No. 71 require approval by the Commissioner in Executive Council. This provision ensures additional protection for all members of the association.
As well, the association held its annual general meeting on March 30, and a report was presented to the members on the status of the proposed act, and changes were made from the original draft of the bill. This report was accepted without discussion.
The Member for Riverdale South, Mrs. Firth, asked if I met with the association, and I did. I met with it to discuss the proposed act, and in particular to discuss concerns brought to my attention by the member of the association from Riverdale South. The executives of the association assured me and the Department of Justice staff that the association discussed issues and the concerns with their membership, and they agree with the proposed amendments to the act.
Mrs. Firth also asked if the regulations are forthcoming. I understand that the association is working on the regulations. Once it has approved the regulations as set out in the act, they will be forwarded to the Commissioner in Executive Council for approval. The association has advised that we can expect to receive the regulations by about the end of May.
The Member also asked what the relationship is between the regulations and the bylaws. The bylaws are the rules that are made by the council for the operation of the association and the management of its affairs. The bylaws come into force upon approval of the majority of the voting members. Regulations established to guide the activities of the profession are also made by the council. They come into force with the approval of the majority of voting members and the approval of the Commissioner in Executive Council.
The Member also asked how limited licensing will work. This is a new concept that allows for the licensing of individuals based on an evaluation of their experience, rather than university credentials. Holders of a limited license would be restricted to practicing engineering only in their specific areas of expertise. The association is presently carrying out extensive research with other jurisdictions on limited licensing and how it works. The association will not propose regulations for limited licensing until the research is complete.
There is also an anticipated cost to government, and our cost is only for the government time spent in reviewing, drafting and printing the legislation. I hope that answers some of the questions that the Members posed in second reading debate.
Mrs. Firth: I thank the Minister for the answers to my questions. I just have a couple to follow up with. Are the bylaws expected to be ready by the end of May, as well as the regulations?
Hon. Mr. Phillips: Yes, they are.
Mrs. Firth: On the issue concerning the evaluation of experience in the limited licensing - the Minister said they are researching it - is that going to be ready to be included in the regulations and bylaws by the end of May?
Hon. Mr. Phillips: No, that will not be done by the end of May, but the association is hoping to get it done by June or July. It will be done very quickly, so that it can be implemented.
Mrs. Firth: I would like to ask the Minister if, once Cabinet gets the regulations and bylaws and approves them, he will make them available to the Members of the Legislature?
Hon. Mr. Phillips: I can give the Member the regulations, but the bylaws belong to the association. If the association will give the bylaws to the Members, that is not a problem. As soon as they are available, as soon as they have passed Cabinet, I will make them available to the Member.
Mr. Cable: Just to get it on the record, based on assertions the Minister has given that he checked with the legal profession on their act and the requirement for two-thirds majority on certain issues, and on what I assume are his conversations with the engineering profession that this is in fact what they want and that they put this forward for debate, I will not proceed with what I had intended by way of an amendment to section 12.
Hon. Mr. Phillips: My understanding is that it is the wish of the association that it remain as it is.
Chair: Is there further debate?
On Clause 1
Clause 1 agreed to
Hon. Mr. Phillips: This is quite a hefty bill, and there seems to be fairly unanimous support for it. If there are Members who wish to go to specific clauses, that might be a quicker way to deal with this.
Ms. Commodore: I do not have any questions about this. As I said yesterday, we were briefed by the department and a lot of our questions were answered at that time. It appears that questions asked by other Members have been answered by the Minister. I would move that we deem this to be read.
Chair: Is there unanimous consent?
All Hon. Members: Agreed.
Chair: I declare unanimous consent has been given.
Are clauses 2 to 71 deemed to be read and carried?
Some Hon. Members: Agreed.
Title agreed to
Hon. Mr. Phillips: Mr. Chair, I move that you report Bill No. 71 without amendment.
Motion agreed to
Chair: We will move on to Bill No. 88, entitled Yukon Foundation Act.
Bill No. 88 - Yukon Foundation Act
Chair: Is there any general debate?
Hon. Mr. Phillips: There seemed to be general support for this bill in second reading. There were not many questions asked, so I do not have much to add, other than the fact that this bill went through a consultation process with the Yukon Foundation.
The foundation was very involved with the Department of Justice in drafting the bill, and, as was stated so well by the Member for Riverdale South, this bill will provide real certainty to a very important foundation, so that Yukoners may bequeath their estates if they so wish.
Chair: Is there any further debate?
On Clause 1
Clause 1 agreed to
On Clause 2
Clause 2 agreed to
On Clause 3
Clause 3 agreed to
On Clause 4
Clause 4 agreed to
On Clause 5
Clause 5 agreed to
On Clause 6
Clause 6 agreed to
On Clause 7
Clause 7 agreed to
On Clause 8
Clause 8 agreed to
On Clause 9
Clause 9 agreed to
On Clause 10
Clause 10 agreed to
On Clause 11
Clause 11 agreed to
On Clause 12
Clause 12 agreed to
On Clause 13
Clause 13 agreed to
On Clause 14
Clause 14 agreed to
On Clause 15
Clause 15 agreed to
On Clause 16
Mrs. Firth: Will there be bylaws? Does the Minister know when?
Hon. Mr. Phillips: My official is not here. We went into this a little quicker than I thought we would. I can get back to the Member on that. I expect they will be drafted fairly quickly, but I can get back to the Member on the exact timing.
Mrs. Firth: I imagine that the foundation will be doing that, so I will have to get the bylaws from them, as I will for the engineering profession. I was just kind of curious about whether or not the foundation has done them or if they will be done soon. I am prepared to clear it.
Clause 16 agreed to
On Clause 17
Clause 17 agreed to
On Clause 18
Clause 18 agreed to
On Clause 19
Clause 19 agreed to
On Clause 20
Clause 20 agreed to
On Clause 21
Clause 21 agreed to
On Clause 22
Clause 22 agreed to
On Clause 23
Clause 23 agreed to
On Clause 24
Clause 24 agreed to
On Clause 25
Clause 25 agreed to
On Clause 26
Clause 26 agreed to
On Clause 27
Clause 27 agreed to
On Clause 28
Clause 28 agreed to
Title agreed to
Hon. Mr. Phillips: Mr. Chair, I move that you report Bill No. 88, entitled Yukon Foundation Act, without amendment.
Motion agreed to
Hon. Mr. Phillips: Mr. Chair, with regard to the other bill that we have to deal with, I believe that there is still some information to come from Justice. Perhaps it is appropriate if we break early for dinner and come back at 7:30 p.m. to deal with the bills at that time.
Chair: Is there unanimous consent?
All Hon. Members: Agreed.
Chair: There is unanimous consent.
We will recess until 7:30 p.m.
Chair: I will now call the Committee of the Whole to order. We are dealing with clause 1 of Bill No. 99, entitled Ombudsman Act.
On Clause 1 - previously stood over
Hon. Mr. Ostashek: In light of the debate this afternoon, I propose an amendment to clause 1. I move
THAT Bill No. 99, entitled Ombudsman Act, be amended in section 1 on page 1, substituting the following definition of "authority" for the definition of "authority" in the said section 1:
"'Authority' means an authority set out in Schedule A and includes members and employees of the authority, but does not include
"a) a corporation of which the controlling share capital is owned by a person other than the Government of the Yukon, or an agency of the Government of the Yukon, or
"(b) the Legislative Assembly Office or offices of the Members of the Legislative Assembly, or
"(c) the chief electoral officer and election officers acting under the Elections Act, or
"(d) a court established by an enactment."
I believe that will address the concerns that the Member opposite had.
Mr. Penikett: I note that the language is almost identical to the language contained in Bill No. 77, Access to Information and Protection of Privacy Act, and, as I understand the amendment, it does meet and address the concerns raised in Committee of the Whole this afternoon.
Clause 1 agreed to as amended
On Clause 4 - previously stood over
Hon. Mr. Ostashek: The other concern that was raised was about clause 4.
Hon. Mr. Ostashek: I move
Bill No. 99, entitled Ombudsman Act, be amended in subsection 4(2) on page 2 by substituting the following for the said subsection:
"(2) The remuneration of the Ombudsman shall not be reduced except on an address of the Legislative Assembly made by at least two-thirds of the members of the Legislative Assembly"
Mr. Penikett: This amendment also addresses the concern that was raised this afternoon, a concern arising from the potential ability of some future Executive Council to essentially render the ombudsman powerless by reducing their pay to practically nothing. This concern has been addressed by an amendment to subsection 2 of this section, which provides that this can only be done with the approval of two-thirds of the Members of the Assembly, which provides symmetry with the majority required to appoint an ombudsman in the first place, and it is therefore satisfactory from my point of view.
Clause 4 agreed to as amended
On Schedule A - previously stood over
Schedule A agreed to
Title agreed to as amended
Hon. Mr. Ostashek: Mr. Chair, I move that you report Bill No. 99 out of Committee with amendment.
Motion agreed to
Bill No. 50 - Conflict of Interest (Members and Ministers) Act
Chair: We move to Bill No. 50, entitled Conflict of Interest (Members and Ministers) Act.
Hon. Mr. Ostashek: This act contains conflict-of-interest provisions governing MLAs and Cabinet Ministers. I will briefly go over the benefits of the legislation.
It defines conflict of interest and those activities that are conflicts between public duties and private interests. The definition used in the bill ensures that Members and Ministers view conflict of interest in a broader sense than merely financial gain.
The bill also deals effectively with the distinction between real conflicts and apparent or potential conflicts. It establishes a conflict-of-interest commission, which is responsible for providing advice to MLAs on conflict issues and investigating complaints of conflict of interest. This provides an impartial office, reporting to this House, which can advise Members, Minister and the Government Leader and investigate complaints.
It preserves the system of public disclosure of MLAs interests as a key component of the Yukon conflict-of-interest regime. This ensures that Members' and Ministers' financial and other interests and those of their spouses and dependent relatives are a matter of public record, but at the same time not restricting people with business interests from seeking and holding public office.
It enshrines in law the current rules for Ministers with respect to conflict of interest, and it provides the Government Leader with the ability to strengthen these rules.
As hon. Members are aware, we will be putting forward amendments at the relevant sections that will place prohibitions on Ministers with respect to carrying on a business, engaging in employment and holding offices and directorships; provide for a six-month cooling-off period for former Ministers when they leave Cabinet; make a statement in the preamble of the bill that public officials should carry out their public responsibilities in a manner that does not conflict, or appear to conflict, with their private interests. There is also a suggested amendment that will require the Legislature to deal with reports arising from investigations of the conflict-of-interest commission within a prescribed period. This will ensure that such matters are resolved expeditiously for all concerned.
Mr. Penikett: We debated this bill in second reading some months ago. At the time, we found fault with the legislation on a number of counts, and the basic conclusion was that it is inferior to the Public Government Act that had been passed in 1992. On that score, we felt it was unnecessary, because we had better legislation already on the books, and this legislation was taking a step backwards in terms of this particular provision.
Since that time, a significant number of amendments have been suggested and have been the subject of informal discussion among the parties. These amendments improve the bill significantly and, in some cases, make it very similar to the Public Government Act, which of course again raises the question of necessity, but I do not mean to dwell on that here.
In the case of this bill, we have been given significant information about the proposed amendments, with one or two exceptions that have been mentioned by the Government Leader, which I guess we are still to receive.
Given the importance of this issue and the nature of previous debates in this House, to say nothing of - how can I describe it - a position or an evolving policy on this question from the government opposite, it will be necessary for us to proceed through clause-by-clause debate on this bill with some care.
I would, however, make a request that, after other Members who wish to contribute to this part of the general debate have spoken, the sponsor of the bill might address some of the major issues of principle that were contentious and are addressed in some of the amendments. I know we will be speaking to the particular provisions in each of the clauses and that we will be considering amendments to many of those clauses; however, the issues of principle about Ministers not being able to conduct business - the requirement that the basic standards of conflict be in the law, not subject to later regulation; the general declaration to be contained in the preamble, such as the Government Leader mentioned; questions of definition about business and business activity, which have been the subject of some discussions -
I think, because the public and readers of Hansard will not have been part of the private discussions that have gone on over the last few weeks, it might be useful at this stage for the Government Leader to say a few words - perhaps after Mrs. Firth and Mr. Cable have spoken, but it does not really matter when - about those principles, so that they are clearly on the record before we begin the clause-by-clause debate.
Mrs. Firth: I agree with the comments made by the Leader of the Official Opposition with respect to what has happened since the original tabling of the conflict-of-interest legislation. He said that there should be a brief history presented publicly, so that it is on the record officially as to what has transpired in the meeting between the Government Leader, the Leader of the Official Opposition, the Leader of the Liberal Party, and I as the Leader of the Independent Alliance. I was going to briefly do that, but I suppose it would be more appropriate for the Government Leader to do it, beginning with the original meeting that we had, and the first letter he sent us.
I think that he should outline a bit of the discussions - this went back to December 16, 1994 - and give an outline of the letter that we were sent, the proposals for discussion that we received after that letter following our next meeting; the summary of recommendations at a subsequent meeting, and then the issue of the conflict of interest post-employment obligations, and the scope of the options, and how it was going to be implemented. I will leave that for the Government Leader to do.
I just want to register my main concerns with respect to this legislation as it is going to be amended. I have two major concerns, which are going to be critical to whether or not I can support this legislation. The first concern I have is with respect to the conflict-of-interest legislation not applying to members of the public service - to employees.
I know that the Government Leader is going to outline some of his concerns. Some of the different options that the government is looking at is how to implement conflict-of-interest legislation for the employees - should we use policy regulations or legislation? My opinion is that there were policies in place and the same policies continue to be in place. The policies were ineffective in avoiding perceptions of conflict of interest. We can debate whether or not there was a real conflict of interest, but I think that we have already concluded that there were perceptions of conflict of interest with the employees. I think it is very important that the government address that in this session, and that it addresses it because public expectation is that it will be addressed.
The whole issue has been left kind of dangling, so to speak, because there were issues raised in the Legislature about trips that had been taken by government employees that created a perception of conflict of interest. The policies that were in place were obviously not being followed. The government indicated that the only thing it has done to remedy the situation is to restate the same policies to the employees. We have had no evidence of disciplinary action because of the incidents. The public has been let down because of that.
It is very important that the government consider having legislation and having it in place to address the issue of conflict of interest with respect to the employees. In some instances, it is even more important that it be in place for the public servants because they are the ones who are dealing with the business community on a daily basis, and perception has to be impeccable. There are ways to deal with us as politicians if the public is unhappy with our behaviour or the examples we set with respect to conflict. They can deal with us at the polls. There is great frustration in the public right now that these incidents have happened; they have been brought to the public's attention and have not been dealt with, and the situation still remains that this can happen again.
That is my first concern with respect to the conflict-of-interest legislation.
My second concern is the issue with respect to what we were discussing with the Ombudsman Act. I particularly want to see this piece of legislation come into force immediately. I can live with the Ombudsman Act not coming into force until we have the industrial support policy and are called into session again. In my opinion, it is almost mandatory that we have this legislation become effective immediately.
We have asked the sponsoring Minister about that. He has indicated to us that it would be an onerous task to do it. I do not agree, and I think other Members of the Opposition are of a like opinion. I believe we could have an interim conflicts commissioner appointed very quickly. That appointment could be endorsed by Members of the Legislature. If we have to set up the position and office on a temporary, interim basis to give the government an opportunity to examine whatever it wants with respect to combining the office of the ombudsman, the access to information and conflicts commissioner and whatever else, so be it.
I think public expectation is that, when conflict-of-interest legislation has been debated in this House and has passed, it become effective almost immediately. I believe that is what the demand is.
If the government wants to address the issue of conflict of interest in a sincere way, particularly to the public, and demonstrate that its intentions are good and honourable, then it has to do something about it right away. It cannot just bring the legislation in and promise that it will be implemented before the next election is called.
I think the expectation is that it be implemented immediately. I think it is in the best interest of the government that it does that to preserve what reputation it may have left with respect to the issue of conflict of interest.
Those are my concerns. I agree with most of the amendments that have been brought forward, if not all of them. I think because of the discussions we have had we have a better piece of legislation, but, of course, it is not worth five cents to anyone if it is not implemented right away. I look forward to what the other Members have to say and look forward to the rest of the debate.
Chair: Is there further general debate on Bill No. 50?
Mr. Cable: I do not have much to add. I think the Government Leader is about three-quarters of the way home on the concerns that were indicated by the Opposition Members and, as I understand it, he has not said "no" to the other one-quarter, as yet. We may have the makings of a deal, if we spend enough time here in the Legislature. It would be useful for the Government Leader to recapitulate just where he thinks we sit on the agreement so far.
Hon. Mr. Ostashek: As the Members opposite have pointed out, there has been a lot of give and take in negotiations on this piece of legislation since it was introduced in December. I have worked very closely with the Opposition to try to answer their concerns in the bill, and I believe that we have done that pretty well in entirety. We wanted to keep this bill separate from the bureaucracy; we felt that this bill should apply only to Members of the Legislature. That is why this bill was brought forward.
We can deal with the other conflict issues through the Public Service Commission and the Cabinet and Caucus Employees Act. As I have already said in our meetings, all major boards and committees are covered by conflict legislation through the various departments in which they work. We did not feel they needed to be all combined in this act. That is a different philosophical opinion between us and the sponsors of the previous bill. I believe we have reached agreement on pretty well all of the concerns.
The outstanding issue for the Member for Riverdale South is the Public Service Commission; she would like to see it in legislation. It may end up in legislation. I cannot make that commitment now. As I did point out, if we were to put in legislation, we must make amendments, not only to the Public Service Act, but also to the Education Act, and there is a clause to consult with the bargaining units prior to any amendments, so that will take some time.
I am not of the same opinion as the Member for Riverdale South. I believe that the conflict-of-interest legislation that is on the books now is serving us well. There is no doubt that it can always be strengthened. She is wrong regarding the situations that she is claiming were not dealt with. They were dealt with and I am satisfied that they were dealt with properly.
The fact that they did not get a public airing is because they are employee-related issues that ought not to be aired in public. We have dealt with those issues under the policy that is in place now. I believe that it has served us well. We did send memos around, reminding everyone of their obligation. We will be looking to strengthen that, either through policy or, quite possibly, through amendments to the Education Act and the Public Service Act.
I believe that those issues have been addressed. As I say, the conflict concerns that were raised in the Legislature were dealt with in a satisfactory manner, I believe.
The one outstanding issue that the Member for Riverdale South, and perhaps all Members of the Opposition, referred to is the coming into force of the legislation. I do not see the panic to have this proclaimed the day after it is passed. I do not see the need to go to the extra expense to train people twice. We have made the commitment - and made a further commitment today - if, in fact, we are called back to debate the application under the industrial support policy, and have, at that time, some consensus on the ombudsman, we can get that office in place and move on to implement all of these acts: the Ombudsman Act, the Conflict of Interest (Members and Ministers) Act and the Access to Information and Protection of Privacy Act.
I am not prepared to back off on that one; the government will go with that and will be proposing an amendment to section 26 on the coming into force.
Other than that, I think it may be useful, for the record, to go through the amendments that will be introduced. I will not go through them in detail, because I can do that when we come to clause-by-clause debate. These are amendments that have come forward as a result of the concerns raised by the Members opposite to help strengthen this bill. Since this is a bill that will apply to all Members of this Legislature, I was quite happy to have input from the Opposition benches.
The first amendment we will be dealing with is in the preamble, where we will be making a statement with regard to public officials and how they carry out their public responsibilities.
There will be amendments to sections 8 through 13, which are five new sections, about the business and employment activities of Ministers. As Members will recall from the discussions we had, I believe that there has been consensus reached on these sections. We will spell out in the act some of the limitations about what Ministers and legislators can and cannot do. There will also be some definitions as to what constitutes business.
Besides that, the Government Leader will still have the ability to implement stricter guidelines if he or she so chooses. This government will be enshrining in the act some level of comfort to all people.
Section 9 permits Ministers to obtain approval from the conflict-of-interest commissioner for activities that are not in violation of prohibitions on business and employment activities. Ministers must, however, disclose all material facts. We will get into the detail of that later. It states that the Minister may seek advice from the conflict-of-interest commissioner if he or she is concerned about a particular activity that may be seen as a potential conflict of interest.
Section 10, dealing with restrictions on former Ministers accepting contracts from the government, was another concern raised by Members of the Opposition. This amendment, coupled with section 12, spells out post-employment restrictions that will apply to former Ministers for a six-month period.
Section 11, which states that a contravention of section 10 creates a conflict of interest, makes it clear that it is a conflict of interest for Ministers or former Ministers to violate the rules governing employment and business activities, and for former Ministers to violate post-employment restrictions.
In section 12, we have addressed the restrictions on the Executive Council awarding contracts to former Ministers. That was another concern that was raised by Members of the Opposition. As with section 10, this amendment will deal with post-employment restrictions.
There are some exceptions to sections 10 and 12, and section 13 allows the former Minister to appeal to the conflict-of-interest commissioner for a ruling on whether or not the conflict of interest is so remote and insignificant that it should not disqualify him or her. So, there is an appeal process for former Ministers.
There will be amendments moved in section 11. The amendment allows former Ministers to seek advice from the conflict commissioner, and also for the Government Leader to seek advice from the commissioner about former Ministers.
An amendment is to be moved in this section regarding the appointment to the commission. The amendment to this section will require a two-thirds majority vote for both the appointment and the removal of members of the commission.
An amendment to section 17 will add subsection 17(5). This amendment has been suggested to ensure that there is a specific requirement for the Legislature to deal with the report by the commission on the investigation within a certain period of time, for example, within 30 days of being provided to the House. I am not sure that that is one we discussed in our committees, but it is one that, as they were going through the act, they felt should be in it. We can get into discussion about it when we get into the clause-by-clause debate.
I have already spoken about section 26, dealing with coming into force, which we will be moving an amendment on as well.
I believe that should cover most of the discussions we had in our meetings over the winter. For the record, I just want to thank the Members for their cooperation in helping us to get a bill together that will, I hope, be acceptable, for the most part, to all Members of this Legislature.
Mr. Penikett: I would like to ask the Government Leader one question. That concerns the possibility of a declaration at the beginning of the bill, the preamble, that we talked about. The virtue of my proposal here is that, without completely satisfying Mrs. Firth's and others' concerns about having a bill that applies to the public service and to all the non-government organizations, it does provide to any reader of the legislation, a clear statement of intent by the Legislature at the beginning about our wishes and our general commitment to standards.
The lawyers in the House can speak to the effect of such a provision; however, even if it is only referenced in the courts when there is some doubt about our intentions, that is fine. I do not see it as a provision that is going to have immediate force and effect. I see it as something in the way of a statement by this House that we are setting rules not just for ourselves, but we have expectations for all of the people in the public sector. We did discuss that in at least two of the meetings that we had between the leaders of the different parties. In the package of draft amendments that I have from the government, I have no suggested language on that point at all. Since this is a point that it seems to me we will come to very quickly, I would like to see what is proposed before we actually begin debating it. I know that is a radical proposal, but I am kind of a hyperdemocrat when it comes to that.
Hon. Mr. Ostashek: I will distribute a package of the proposed amendments. While I am on my feet, I will read out for the Member the language of the amendment. The reason that it was not included in the package is that the drafting has just been completed.
The drafters have come up with this:
"Whereas public officials should carry out their public responsibilities in a manner that does not conflict, or appear to conflict, with their private interests."
Chair: Is there further general debate on Bill No. 50?
Mrs. Firth: I do want to follow up on it. I recall the Leader of the Official Opposition's suggestion that we have a declaration in the preamble that this principle apply to all government employees - that the broad intent be that these are the standards that are being set.
My concern is that it is not the law. It is fine to state admirable principles and say that these are the standards we expect one to follow, but we have already been saying that to them. There were new policies that this government made in place - it is not like they were old and outdated - and those policies were not being followed. That is why we had no public airing about it, because no law had been broken. If there had been a law in place and those activities had carried on, the law would have been broken. It does make a difference.
The Minister is shaking his head as if to say that it would not make any difference; it would. It is different to contravene or disregard a policy than to ignore a law.
I have a lot of concern. We have conflict-of-interest legislation for Members and MLAs, but nothing for the public servants. I object to the fact that there are post-employment restrictions for MLAs and Cabinet Ministers, but none for deputy ministers or senior public servants. I do not think that is right. I do not know how the politicians got talked into doing this for themselves and letting the public servants off scot-free. I, frankly, object to that.
There have been incidences of deputy ministers who have left this government and taken employment without any cooling-off period. They have taken employment and contracts right from the departments where they used to be the deputy ministers. I do not think that is right. I think if we have legislation that applies to the MLAs and to the Cabinet Ministers, it should certainly apply to the bureaucracy, as well. It is difficult for me to understand how the politicians could be talked into doing this to themselves, but not to the bureaucracy. I am going to hold fast to this concern and principle.
The Minister has stood up this evening and said that it may well be that we will have conflict-of-interest legislation for the public servants, bureaucrats and deputy ministers, but when is that going to happen? I know when it will happen; it will be after the next election. We will be in this thing all over again. The Ministers and MLAs will have taken the five-percent wage rollback that I thought was setting an example and was going to apply to everyone else. They will have conflict-of-interest legislation that will apply to Cabinet Ministers and MLAs, which means that there is a cooling-off period for them, but nothing will apply to the senior level of the public service or to the deputy ministers. I do not think that is right. It should apply to everyone at the same time.
Unless the Government Leader can give me some reassurance on when this will happen and exactly what will be done, I know it will be stalled - they will hum and haw, think about it, bring proposals forward - and before you know it, it will be election time and it will not have been done. The Government Leader will then be in a position to stand in the House and say the government tried but could not figure it out. I would prefer to see some direction given at the political level with respect to what they want, and what I want is similar legislation to apply to the public service - the same conflict-of-interest legislation, the same type, same rules, same standards and the same principles - as to the Members.
The Minister should be giving direction to the drafting people in the Justice department to get that ready immediately. That is my feeling on this.
I would like to hear when the Minister anticipates this legislation will come forward. He does not even know if there will be legislation. They are still in the discussion phase of whether it will be policy, legislation or regulation.
I am not prepared to accept anything other than legislation, because that is what applies to the Members and to the Ministers.
Hon. Mr. Ostashek: That is where the Member and I differ, because there is absolutely no difference whether we handle it with a piece of legislation or whether it is done in policy; the penalties are the same. I am not of the same opinion as the Member that the conflict-of-interest policy we now have for the public service is not working. I believe it is working. We demonstrated that this winter when concerns were raised; it is working. There are guidelines in place.
The other comment I want to make is that the post-employment restrictions are just for Cabinet Ministers, not for MLAs. There will be legislation for the deputy ministers and it will be done very soon. If it is amendments to the Public Service Act, they will come in the next sitting. If it is done by policy, it will be done before that. We are adamant about bringing in legislation concerning a cooling-off period for deputy ministers.
As I said when I was on my feet before, we have to consult with the bargaining unit and the Yukon Teachers Association before we bring forward amendments to those acts. We will be doing that.
I can assure the Member that we are going to proceed. Where she and I differ is that she thinks the only way to cover this is with legislation and I disagree with that. I think there are other methods that are just as effective as legislation.
Mr. Penikett: I will not speak at length. I will, however, make sure that I put my party's position on the record. It was the intention of the Public Government Act to have coverage extend not just to Members and Ministers, but also to public servants and political staff.
I am someone who feels very strongly about that and I feel very strongly that the rules should apply to all. I will explain just briefly why I think there is a problem. They were public servants who did not like the provisions of the Public Government Act, and we consulted with them. We heard some who thought they should be stronger and we knew some who did not like them - not the least of reasons, they worried about the impact on them following their government employment and whether or not they would be barred from activities, or earning a reasonable income.
I also think that the Public Government Act was better than Bill No. 50 in this sense, because it also addressed political staff - believe me, having watched some of the antics in Ottawa over the last 20 years and problems with conflict - not so much Ministers, but perhaps more than Ministers - with Ministers' aides can be enormous. There are people who have profited from their employment in Minister's offices and I think that is quite clear.
That said, the language of Bill No. 50 is not as it is now written, a bill about political staff nor public employees, and I do not think it can be easily amended to make it so. I believe the language of the proposed amendment, which is a general statement about the duties of public officials, is written in plain English and is a clear, general statement. I can accept that for what it is. I do not want any illusions, I want to make it quite clear that the view of the New Democratic Party is - as is in the Public Government Act - that we should have legislation that applies to all people in the public sector, but that is not what Bill No. 50 does. However, I think a statement such as is contemplated at the beginning of Bill No. 50 improves it.
Hon. Mr. Ostashek: I will be very brief with my comments, but I just want to say that there will be conflict-of-interest guidelines that apply to political staff, but it will be addressed under the Cabinet and Caucus Employees Act, we did not want it to be incorporated in this bill. However, we are going to cover those and I am on the record as saying that, and this government will be following through very quickly with that.
Mrs. Firth: May I express my reservations about commitments and promises made? I cannot even remember how long it has been since I have been lobbying the government and the previous government for conflict-of-interest legislation. It has to have been at least five or six years and two years or more with this government.
The Minister can appreciate that I may be a bit skeptical when the legislation "is going to be done really quickly and in place before the next election".
I thought we had the legislation. I thought we had debated it in the House; we all agreed to it; it had been passed and then the legislation was wiped out and redrafted all over again.
I am sorry. I do not want the Government Leader to take this personally. I have been around once or twice with this issue. For him to stand up and say that it is going to come and it is going to be here immediately, and if I do not happen to say, "Hurrah, hurrah - I believe everything that you are saying and I am not skeptical about it," I hope he can understand why. Too many promises have been broken too many times. My preference would be that the Minister had something in place now, so that it was coming into effect immediately, at the same time as this.
Mr. Cable: I was just looking at the conflict of interest, post-employment obligations handout that the Minister gave us in one of the meetings. It appears to say that, to be viable, the cooling-off period will have to be put in legislation. Am I reading the document correctly? Is that what the Minister is saying?
Hon. Mr. Ostashek: If you are talking about the deputy ministers, yes. That is what we were talking about there. That is why we are talking about an amendment to the Public Service Act - for that. We intend to go ahead with that. There were other amendments that would apply to bargaining unit people that could also be in a conflict of interest, so we had to talk to them before we could bring the amendment forward. That is why it is not here at this time. However, we will be bringing the amendment for the deputy ministers forward in the legislation in the next sitting, and possibly the one for the bargaining unit as well, at the same time. There is still some debate in the department as to whether or not it can be handled as well with policy. I know the feelings of the Members opposite. I am cognizant of them as we are going ahead with this. The cleanest way may be to put it in the Public Service Act, as well as in the Cabinet and Caucus Employees Act, for the political staff.
Mr. Cable: I suppose that one could also do it by contract. You cannot open up the present deputy ministers' contracts. However, partly by way of accommodating the Member for Riverdale South, would the Minister commit, pending the passing of the legislation, to put cooling-off periods in new contracts for deputy ministers? From time to time, additional deputy ministers are hired.
Hon. Mr. Ostashek: Let me put it this way: I would have to think about it a bit. I will tell the Member why. It is not that I see anything wrong with it, but, after I took over the office, I was not happy with previous administrations - I say administrations, because it was not just one administration - having separate contracts with each Minister, each having different clauses about how much they would be paid out if terminated, and so on. We announced the contracts publicly with regard to deputy ministers' remuneration.
I will talk to the deputy ministers and see how they feel about it and if that would be a way of handling it that is suitable for the Members opposite, rather than legislation, it may be another route to go. Perhaps it could be written into all the contracts for the deputy ministers.
We are trying to keep the deputy ministers' contracts uniform, so that there is not one deputy minister that has one contract and one that has another. I certainly will consider that.
Mr. Cable: I was simply suggesting this as an interim measure. I believe also that, eventually, there should be legislation dealing with cooling-off periods.
Mrs. Firth: I would like to make a point about that particular suggestion. As I recall, we debated in this House the whole issue about the deputy ministers' severance packages. I remember the issue coming forward about the large severance packages. The issue, at the time, was also raised with respect to the deputy minister taking a government job, having access to information through that job and then getting a job in the private sector, and then utilizing that information, in a sense, against the government. At that time, the Government Leader publicly indicated that he would be looking at that and that it would be part of the severance package.
I asked in the House if we, as Opposition Members, could see the criteria of the severance packages and what would be negotiated in them. We were not allowed to see them. The only people who were allowed were the deputy ministers. I think we have already been through that. Again,, the information was kept from Members of the House, but the deputy ministers, in a sense, were allowed to negotiate their own severance packages with the government without any public scrutiny. Of course they would not want that in their severance package. The Government Leader said he would consider that. It would have been appropriate to consider it at that time. The comment that he made to us was that he was going to do that. There is always another road block.
We just have to get a grip on it, say we are going to do it and then do it - that is it. Otherwise, the deputy ministers will keep us talking about it forever, and it will never get done.
Hon. Mr. Ostashek: I will be very brief. We have a severance package that the Member opposite and the public are aware of. All deputy ministers are covered by the same severance package. The months of severance that they would get and how it applied was announced publicly. It was not a secret; it is out in the general public.
The Member talked about stopping a deputy minister from using inside information. I believe she was referring to the land claims negotiator at the time. We can put the wording in, but it is almost impossible to get a conviction. The only thing that we can do - and we can do it without legislation - is to not give contracts to deputy ministers until there has been a cooling-off period, but we certainly cannot stop them from going to work for the private sector and dealing with government. We can challenge it in the courts to try to prove that they used inside information, but we are not going to win very many, if any.
Ms. Moorcroft: I have a question regarding the amendment to clause 50 that the Minister has put forward.
The Minister intends to move an amendment covering the conflict-of-interest guidelines for public service employees. Will the amendment mean that the conflict-of-interest policy will have statutory obligations? In other words, will the rules governing the public service be such that, in order that honesty and impartiality may be beyond doubt, public servants should not place themselves in the position where they are under obligation to any person who might benefit from special consideration or favour on their part, or seek in any way to gain special treatment from them, and, e
qually, that a public servant should not have a pecuniary interest that could conflict in any manner with the discharge of his official duties.
I gather they are saying that no conflict should exist, or appear to exist, between the private interests of public servants and their official duties. Upon appointment to office, public servants are expected to arrange their private affairs in a manner that will prevent conflicts of interest from arising. Public servants should exercise care in the management of their private affairs so as not to benefit, or appear to benefit, from the use of information acquired during the course of their official duties, when such information is not generally available to the public.
Public servants should not place themselves in the position where they could derive any direct or indirect benefit or interest from any government contracts over which they can influence decisions.
When a public servant is expected to exercise care in the management of their private affairs so as not to benefit from government spending habits, do they also have an obligation to disclose to the government the private interests that they hold?
Hon. Mr. Ostashek: I believe the Member was reading from the conflict policy that is in place now. I do not believe that covers public servants having to disclose their private interests right now. We are putting a clause in the preamble stating that public servants should conduct their affairs in a manner that is consistent with this conflict legislation.
Ms. Moorcroft: Having added that clause to the preamble, has the government considered adding an additional part to the legislation, which would cover the conflict-of-interest guidelines?
Hon. Mr. Ostashek: As both the Leader of the Official Opposition and I have stated in this House, this bill does not cover public servants. We will be bringing in amendments to the Public Service Act to do that. To give some level of comfort to the Leader of the Official Opposition and Members opposite, what we are doing by making a clear statement in the preamble is sending a strong signal to the public servants about the manner in which they should conduct and discharge their responsibilities.
Ms. Moorcroft: What exactly was that strong signal? I have to say that I have had calls from a lot of people who are still complaining that when they bring concerns forward about conflict of interest, they are not adequately addressed.
Hon. Mr. Ostashek: I am not aware of what complaints the Member is talking about and whether they are official complaints or just verbal statements being made by people who are unhappy that complaints are not being investigated.
I believe that our Public Service Commission is professional enough that they would not ignore complaints that were put to them. I see the Member for Riverdale South shaking her head and that is fine, she has her opinion and I have mine. I think that we have some very professional people working for this government.
This statement is in the Conflict of Interest (Members and Ministers) Act. By putting this statement in, which was on the advice of the Leader of the Official Opposition, it gives the Member some comfort that public officials will feel obligated to discharge their duties and responsibilities in a manner that is consistent with this conflict-of-interest legislation that applies to Ministers and Members.
Mr. Penikett: Obviously, the problem arises and we are not going to be able to deal with it in this particular clause. The problem that arises is that one of the substantial differences between this bill and the Public Government Act is the powers of the conflict commissioner just being for Members and Ministers.
In the past, I guess we could have had a situation such as the one mentioned by Mrs. Firth or Ms. Moorcroft, in which a citizen who had a complaint about conflict or appearances of conflict that might involve a high official, but not an elected one, might have been able to gain some satisfaction by going to a conflict commissioner and finding out what the law was and if what they were doing was kosher.
I understand perfectly the arguments of confidentiality and personal records. Let me use an example of someone who may have been disciplined. I understand that, while that may go on their personal record and that it may affect their career prospects, it is not often the subject of public debate, and I understand that.
The problem for the constituent, the citizen who complains, is they may never get satisfaction for their grievance. The Member for Mount Lorne brought forth a case not so long ago where it appeared there was a public servant operating a business from their place of work at a government operation. None of us know how that was resolved by the government, except that we are told that it was resolved.
The problem is that the person who may be aggrieved by that activity may have been a business competitor and may have felt that they have suffered some harm or some financial loss. I presume - I do not know - that they have the recourse of going to the courts and hiring lawyers, but that is a very expensive and somewhat tricky business. Even if one goes a different route than we went with the Public Government Act, and even if one amends the public service legislation, this seems to me to be a serious policy problem, because you may want to continue to have confidentiality about personnel matters, you may want to avoid having discussion of them on the floor of the House, you may want to ensure that discipline by management of employees is essentially a private matter between the employer and the employee, but you will still be faced with the serious problem of public policy, the problem of transparency, the problem of a citizen feeling that the grievance has been adequately dealt with and that they can see - what is the old expression, - that justice is done, but also seen to be done. I am not saying it correctly, but it is some notion like that. The problem for the citizen is - and I think Ms. Moorcroft is absolutely right about this - that if the government says, "We have addressed it and have sorted out this problem. We agree that there is a problem. We have disciplined the employee. Trust us. It has been dealt with," but does not state what the discipline was, that may not fit with the citizen's notion of justice and fair play - not that they want a public hanging, not that they want a trial or a lynching, but they may - and the public policy makers may - want to have some way of satisfying the citizen that the case has not only been heard, but that the complaint has been dealt with fairly.
If all the disciplinary procedures are, as they are in the public service, essentially private and confidential, they are unseen; they are not accessible to the public. Because politicians in this day and age are not people of high repute - they are not widely admired - when a politician says, "It is all right, we have dealt with it. You must accept my word that the complaint has been dealt with," we have to accept that citizens may not be entirely satisfied with that. I admit that it is going to be difficult to deal with it in Bill No. 50, but I think that it is a point of public policy that is going to have to be addressed.
Chair: Is it the wish of the Members to take a brief recess at this time?
Some Hon. Member: Agreed.
Chair: We will take a brief recess.
Chair: I will now call Committee of the Whole to order.
Is there further general debate on Bill No. 50?
Hon. Mr. Ostashek: I just want to comment on the comments that were made by the Leader of the Official Opposition just before the break. I understand the concerns that have been raised by the Member for Mount Lorne, the Member for Riverdale South and the Leader of the Official Opposition as to people having some comfort that their concern has been dealt with. We cannot deal with it in this bill, but I will be open to any suggestions or recommendations about how we can deal with the amendments to the Public Service Act, to be able to give some level of comfort to the Members opposite and to their constituents, that the issue has been dealt with and has been expedited in an appropriate manner.
Ms. Moorcroft: I would like to ask the Government Leader if he thinks that public servants should be obliged to disclose their private interests when they are working for the public service.
Hon. Mr. Ostashek: I do not think I can agree with that. I think that is pretty heavy stuff, but I do believe public servants should be obliged to come forward if they have some interests they deem to be perceived as a conflict. As the Member was reading out, there are already conflict guidelines as to how they deal with that, but I am not sure I would go so far as to say they should list all their assets.
Ms. Moorcroft: I was not specifically saying to the Minister they should list all their assets, but to disclose their private interests. They may not need to give the financial details of their company statements. However, if a public servant owns a business that does similar work to the kind of work they do for the public service, and they have a private interest, I believe it should be disclosed. Does the Minister not agree with that?
Hon. Mr. Ostashek: Disclosure applies to your private financial holdings. Even the current conflict policy covers the fact that if there is a perceived conflict, the public servant should make their supervisor aware of that fact and get some comfort that it is not a conflict or, if it is a conflict, divest themselves of it or deal with it in a manner that is appropriate.
Ms. Moorcroft: The kind of problem that arises is that employees may take vacation leave in order to do work for their private company during a working day. Members of the public who see this happening call in to question the value of the rules that apply. Does the Minister think it is acceptable that a public servant should be able to take vacation time and go off to attend their private duties in the middle of their working day?
Hon. Mr. Ostashek: This bill is not addressing what public servants do, and I do not want to carry on all night with that debate, but if an employee is not being paid by the government and they are looking after private interests on their own private time, I do not know that the government has any business interfering in that unless it is in conflict with the job that person is doing for the government.
Ms. Moorcroft: Well, I am not sure that the Minister is clear about what that conflict actually is. I do not think I have heard a clear statement from him and I know there are a lot of concerns in the public about that.
The Minister has just said that regardless of the amendment here, the government is not going to cover this in the act. The Public Government Act covers public servants, Ministers and Members. Does the Government Leader think it is reasonable that public servants no longer be covered by legislation, given that many of us get calls from constituents who have these kinds of concerns?
Hon. Mr. Ostashek: I am already on the record as having said that it will be dealt with under the Public Service Act and not in this bill.
Mrs. Firth: I just want to follow up on a comment made by the Minister before we took the break about professional people working for the public service . I do not deny that the majority of the people who work for the public service are very professional and very conscientious about their work. However, in the last while - and it has been quite awhile since I have been fighting for this particular issue - we have had a number of examples, and I will list the most recent ones that come to mind. I know there were more, because that was what originally prompted me to start lobbying the government for conflict-of-interest legislation. I know it was not at the political level that I was lobbying; it was at the bureaucratic/deputy minister/public servant level.
We have had individuals leave their jobs here and take jobs, using information they obtained from government - or, with the ability to use the information in the new job that they had obtained from government. We have had individuals in managerial positions leave their department and start doing contract work for the government, virtually the day after leaving their job - and they took contracts within the very same department they had just left.
We have had employees take free trips and accept gratuities for gaming events. One employee took a trip to the Caribbean and another took a holiday in Hawaii. Also, an issue has been raised about an employee operating a business from their place of work.
I think those are all very serious issues. Frankly, the public is outraged when it hears this. In all of those issues, there was either a conflict or a perception of conflict, and even a perception of favouritism.
I think that public perception is very important. I agree with the comment the Leader of the Official Opposition made, that it is important for the government to satisfy public expectation. What I hear the most from the public is that they say to me, "Bea, whatever happened to the people who took those cruises and those free trips? Did anything ever happen to them?" Nobody is specific. I know they do not want them all to give a pint of blood at high noon every day, or something. However, they want to know that something is being done about it. When I say that I do not know if anything happened to them, because we do not know it and we are not going to know. The next thing they ask me is if the conflict-of-interest legislation we are debating is going to apply to them, so that this kind of thing does not happen any more. I have to say, "No, it does not."
I have the option of saying the Government Leader said that he was going to bring some legislation in, but we do not really know when it is going to be brought in. Or I have the option of saying that the Government Leader does not think it is a problem. That is kind of the impression that I have gotten from him tonight - that he feels the policy is adequate, and he does not think it is a problem, so I will pass that information on. I will then be accused of making accusations and allegations, and all the rest of that nonsense.
The government does not have to do anything to satisfy me, personally, or make me feel better or more comfortable. However, I think it has a grave public concern. There is a public expectation that something will be done to stop this. From these issues and these perceptions, a whole snowball effect takes place within the public. If there is a feeling that there is favouritism being shown, then people are concerned that their business has to do this to compete with the other businesses, and it becomes a vicious cycle.
I am just trying to impress upon the Government Leader that the expectation is out there. The Government Leader stood up and said that he was going to do something about it, that he did not agree with it, that what these people did was wrong and that he was going to address it. Now he is saying, "We will not quite address it this time, but we will try to do it before the next election." The public will just throw their hands up in the air and ask what we are doing.
I do not know what else I can say to the Minister to impress upon him how important it is for his government to do this. It is important for the government to address this issue, or it will open itself to criticism because it has not done it.
Hon. Mr. Ostashek: We will deal with that in the amendments to the Public Service Act. It is not covered in this bill, and it will not be covered in this bill. The Member is wrong; we did not just ignore it. We did deal with it, and the issue was dealt with in a manner that I feel was satisfactory under the conflict-of-interest policy we have.
I have listened to the concerns of the Members opposite. I understand the concern that the people do not know that it has been dealt with, or do not trust the government that it has been dealt with. I hear those concerns, and I look forward to whatever representations the Members opposite want to bring forward to me over the next couple of months, so that I can deal with it in another bill. If we are making amendments to the Public Service Act, we can give them some satisfaction that there will be some process that the public will be aware of, or they will have some comfort knowing that the conflict-of-interest allegations made are at least investigated.
Mrs. Firth: It seems to me that the Minister is throwing up a red herring.
Can he explain this to me: there are three options to address the issue of government employees, which involve the question of whether to use policy, regulations or legislation. I do not understand how we could have debated the conflict-of-interest bill in the Public Government Act, which applied to everyone and was drafted by employees of this government - probably the same employees are still there - brought to this Legislature and applied to all of us - to all government employees, as well as the political staff, boards and committees and everyone - the bill was debated in the House and passed by the majority of the Members of this House, and now the Minister is asking me to make suggestions about how to do it. He is saying that he looks forward to me telling him how to do it. How could we have done all that? Why do we have to do it a different way now?
I do not understand that and I do not think that any logical, commonsense, thinking person would be able to understand why the Government Leader is telling us now that we cannot do it that way - we did it that way. I do not understand the problem. It seems to me that someone does not want to do it that way. Who is that? According to the Government Leader, it cannot be done that way. As I said three times, I know we can do it that way because we have already done it.
Ms. Moorcroft: The Government Leader is refusing to answer the questions, which is a trend we have noticed over the past several months. I have another question regarding conflict-of-interest investigations for members of the public service. What is meant by saying "appropriate personnel action has been taken" regarding the personnel implications of a situation where there has been a conflict-of-interest investigation? Can the Minister explain if that is considered a breach of conduct, a cause for suspension or dismissal, or what appeal process there might be to that?
Hon. Mr. Ostashek: Point of order, Mr. Chair.
Point of Order
Hon. Mr. Ostashek: That is not the bill we are debating in Committee at this time. We are debating conflict-of-interest legislation for Members and Ministers.
Mrs. Firth: It is not a point of order. I just want to make a point here. I saw the Government Leader shaking his head, saying we are not debating conflict of interest for public servants.
I have a great deal of reservation in supporting this bill, and I may not support it because it does not include conflict-of-interest legislation for public servants. It is definitely relevant to the debate here tonight.
The Minister has not been able to satisfy any of our questions. He has even sat down and stopped answering our questions. It is not like the Public Government Act never existed. It was there; it was a real thing. The Minister has to deal with it.
That act dealt with political appointments, Ministers, MLAs and public servants. The Minister is now telling us we cannot do it that way. I want to know why not, because we already have done it that way. It is very relevant.
Mr. Penikett: On the point of order, Mr. Chair.
With respect, I think the Government Leader is wrong on this point of order.
We are dealing with legislation, which replaces a bill, the Public Government Act, passed previously in this House, which deals with conflict of interest and applied to Members and Ministers, but also to public servants and political staff. It is surely relevant in general debate on a bill that replaces such an act, and that restricts the application of conflict-of-interest rules simply to Members and Ministers, to discuss the appropriateness of that public policy. It is quite obvious to me that there may be cases in the future where there is an alleged conflict of interest that involves both a Minister and a public servant, or perhaps a Minister, a public servant and a political staffer. Therefore, the question of having separate legislation for each of those three people, and the cumbersome situation that that might produce, is surely relevant enough to at least allow a few minutes debate on the point.
Hon. Mr. Ostashek: We have been debating this for an hour and a half now. The other point is that the Members opposite are fully aware that it was not a Public Government Act that was coming forward. We have had meetings all winter on it. We have stated that we were separating the matters. I thought we had agreement on the amendments to bring this act back to be debated in this House - not to debate the Public Government Act. It is not an act that is before us. It is not an act that was law prior to this act coming in. I do not mind answering a few general questions, but I do not want to get into an intense grilling on what we are going to do in the Public Service Act, because that is not part of this bill.
Mr. Penikett: I want to respond to the point made by the Government Leader on that point of order.
Of course there is a great deal of private discussion and there is prior agreement before coming into this House. None of that matters to the citizen, because our obligation as legislators is to do the public business in public.
As we have said earlier, the subject of private discussion should be reported here. The fact that the government has made a number of amendments to improve its bill is admirable, but it does not invalidate comment about how this bill compares with legislation that was unanimously passed in this House - whether or not it was proclaimed does not matter. There has been a democratic expression in this House in favour of certain principles, including the very basic principle that conflict-of-interest law should apply to public servants and political staff as well as Ministers and Members.
I understand and we all know that is not the government's view. We all know that they have brought in a bill on that basis, but it seems to me entirely relevant and proper for Members in this forum, in general debate, in the Committee stage of this bill to advance other propositions - especially a Member who is not part of the private discussions has a special right to be able to do that, because they have a right to be heard. The debate should not be restricted only to those of us who are privileged to be able to make recommendations, in private, to the Government Leader.
Hon. Mr. Ostashek: I have no difficulty in dealing with it in a general context. The Members opposite have made it very, very clear and have put their wishes on the record many, many times. What we were starting to devolve into was specifics about how we are going to deal with public servants. I have already said that that will be dealt with in amendments to the Public Service Act, or in policy or regulations. It is not being dealt with in this bill. If we are going to talk in generalities - go ahead.
Mr. Penikett: I will just make my final point. I have made the argument about general debate during that time allocated for discussion in Committee. Surely, the Government Leader - I appeal to his common sense here - must understand that recent incidents of alleged conflict of interest involving public employees are relevant to the extent that those are things about which the public is concerned and citizens have expressed views to Members. Members have an obligation to air those concerns on the floor of this Assembly during a debate on this matter.
The Government Leader is quite right - we do not want to spend days on it, and I do not think we want to go over the history of all of the cases. However, the fact that citizens are concerned about what happened at one highway camp, or about Caribbean cruises, is something that I do not think we could ignore. Even though the Legislature may decide that this bill is only going to apply to Members and Ministers, I am sure that Mrs. Firth is right in saying that constituents will ask why we did not do a bill that would deal with those problems, and we will have to respond to that.
Ms. Moorcroft: I would like to add to the debate, but since I see many exchanges between the Clerk and the Chair, I wonder if I should allow the Chair to rule that there is no point of order or if he has another ruling.
Chair: I think that the Leader of the Official Opposition is right, and so is the Government Leader, in my view.
Ms. Moorcroft: Thank you, Mr. Chair. I am glad we are all right. Perhaps it is that warm sunshine out there that has given everyone such a genial disposition this evening.
I would like to speak to the amendment to the preamble that the Government Leader is proposing, which states that public officials should carry out their public responsibilities in a manner that does not conflict or appear to conflict with their private interests. I have had calls from constituents in my riding - and in the ridings of those Ministers - who have concerns about conflicts of interest that may involve public servants, Ministers or both Ministers and public servants.
I believe it is relevant to the discussion to try to get some answers from the Government Leader. If I cannot, I will not badger him; I will give up and point out that we did not get an answer.
People have been involved in long correspondence, including MLAs' offices, deputy ministers and Public Service Commission investigations. When the public is told that appropriate personnel action has been taken regarding personnel implications arising from the above, it does not really tell them what the consequences are for perceived conflict-of-interest situations. I would like to know what the Government Leader can tell us about what happens when these concerns are raised.
Hon. Mr. Ostashek: These are dealt with as personnel matters, and they are not for public disclosure on the floor of this Legislature. That is the way it has always been on personnel matters. I have said that I understand the Member's concerns. I will look for a way to address that in whatever amendments we bring forward in dealing with the Public Service Act; however, I cannot do anything about it in this bill.
Ms. Moorcroft: How do the Ministers and the Government Leader decide if there is going to be a conflict-of-interest investigation or not, when issues are raised in the Legislature, or when members of the public write to the government? How do they decide if they are even going to conduct a conflict-of-interest investigation?
Hon. Mr. Ostashek: It is not up to us to decide; it is up to the Public Service Commission. They deal with the employees of this government.
Ms. Moorcroft: Does the government set out the rules that allow for that decision, or is that also done by the Public Service Commission?
Hon. Mr. Ostashek: The Member has the policy right in front of her.
Ms. Moorcroft: What I would like to know is if this government provides direction in setting those policies governing conflict of interest specifically, which we know the public cares about, or if those are simply written by the public service.
Hon. Mr. Ostashek: The policies of government are approved by Cabinet.
Chair: Is there further general debate on Bill No. 50?
Hon. Mr. Ostashek: I move
THAT Bill No. 50, entitled Conflict of Interest (Members and Ministers) Act, be amended at page 1, by adding to the preamble the following expression immediately before the enacting clause:
"Whereas public officials should carry out their public responsibilities in a manner that does not conflict or appear to conflict with their private interests."
Amendment agreed to
Preamble agreed to as amended
On Clause 1
Hon. Mr. Ostashek: Again, going through this bill if the Members want me to expand on the clauses or provide additional information, I will be happy to do so. Otherwise I will not bother to stand up on each one.
Mr. Penikett: I may as well ask this question, since it occurred to me: has the government given any thought to how it will deal with a situation where there is an allegation that a Member and, perhaps, political staff, have been jointly involved in some conflict?
It is contemplated here that the matter, as it affects the Minister, would be referred to the conflict commissioner, and the political staff person or public servant be referred to someone else? If so, does that not create potential confusion if there are separate regulators dealing with the same fact?
I am not a lawyer, but I understand that it creates big problems in law if you try to have different courts dealing with the same case when different individuals are involved.
Hon. Mr. Ostashek: I can understand the Member's concern. That could quite easily happen. My definition defines the meaning of Minister and Member, who are elected officials covered by this legislation, as well as Cabinet. Standard definitions are provided for these terms.
What the Member raises is entirely correct. Such a conflict could be dealt with by the conflict commission. We could probably address that with amendments to the Cabinet and Caucus Employees Act. We have not specifically identified it in this bill, but it is a valid point.
Clause 1 agreed to
On Clause 2
Clause 2 agreed to
On Clause 3
Hon. Mr. Ostashek: We have an amendment to clause 3.
Hon. Mr. Ostashek: I move
THAT Bill No. 50, entitled Conflict of Interest (Members and Ministers) Act be amended at page 2 by adding the following subclause immediately to clause 3:
"(2) A Member who was but no longer is a Minister violates paragraph 3(1)(a) if, during the six months immediately after they ceased to be a Minister, they use to further their own private interest information that they acquired by virtue of their office as Minister but which was not available to or accessible by the general public."
Chair: Does clause 3 carry as amended? Does the amendment carry?
Mrs. Firth: This means simply that they cannot use information for six months immediately after they ceased to be a Minister, but what if a Minister applied to be a deputy minister of a department that he was just the Minister of? Does he have to wait for six months? What would happen there?
The way I read it, he could get the job right away.
Hon. Mr. Ostashek: I think the amendment deals with the Minister not being able to use the information to further his private interests.
For further clarification, this clause allows the commissioner to investigate the conflict of interest of a former Minister of the Crown.
Amendment agreed to
Clause 3 agreed to as amended
On Clause 4
Clause 4 agreed to
On Clause 5
Clause 5 agreed to
On Clause 6
Clause 6 agreed to
On Clause 7
Hon. Mr. Ostashek: This is where we have a fairly lengthy amendment. I do not know if the Members want me to read each word into the record.
Some Hon. Member: (Inaudible)
Hon. Mr. Ostashek: I have to? Okay. I was just looking to see if I had enough time. We will try it anyway.
Hon. Mr. Ostashek: I move
Bill No. 50, entitled Conflict of Interest (Members and Ministers) Act, be amended at page 3 by adding the following clauses immediately after clause 7 and renumbering other clauses and any references to them accordingly:
"Business and employment activities by Minister
"8.(1) A Minister must not
"(a) carry on business through a partnership or sole proprietorship; or
"(b) engage in employment or the practice of a profession; or
"(c) engage in the management of a business carried on by a corporation; or
"(d) hold an office or directorship unless holding the office or directorship is one of the Member's duties as a Member of the Cabinet, or the office or directorship is in a social club, religious organization or political party
"if such an activity is likely to
"(e) conflict with the Minister's duties as a Minister; or
"(f) create a reasonable apprehension that the Minister is in violation of sections 2 or 3; or
"(g) interfere unreasonably with the performance of the Minister's duties.
"(2) In this section the expressions of "business", "employment", and "office" have the same meaning as in the Income Tax Act (of Canada).
"Exception to section 8
"(9) A Minister does not violate section 8 if he or she engages in the activity in question after the following conditions are met:
"1. The Member has disclosed all material facts to the commission.
"2. The commission is satisfied that the activity, if carried on in the specified manner, will not create a conflict between the Member's private interest and public duty.
"3. The commission has given the Member its approval and has specified the manner in which the activity may be carried out.
"4. The Member carries the activity out in the specified manner.
"Restrictions on former Ministers accepting contracts from the government
"10.(1) A former Minister must not knowingly, during the six months after the date he or she ceases to hold office,
"(a) accept a contract or a benefit that is awarded, approved, or granted by the Cabinet, a Minister, or an employee of a department of the Government of the Yukon; or
"(b) make representations to the Government of the Yukon on his or her own behalf or on another person's behalf with respect to such a contract or benefit; or
"(c) accept a contract or a benefit from any person who received a contract or benefit from a department of which the former Member was the Minister.
"(2) Subsection (1) does not apply to appointment as a public officer as defined in the Financial Administration Act, nor to appointment to an office established by an act.
"(3) Subsection (1) does not apply if the conditions on which the contract or the benefit is awarded, approved, or granted are the same for all persons similarly entitled.
"(4) A former Minister shall not make representations to the Government of the Yukon in relation to a transaction or negotiation to which the government is a party and in which he or she was previously involved as a Minister if the representations could result in the conferring of a benefit not of general application.
"(5) A person who was a Minister, but who is no longer a either a Minister or a Member must not use to further their own private interests during the six months immediately after ceasing to be a Minister information that they acquired by virtue of their office as a Minister but which was not generally available to or accessible by the general public.
"(6) A person who contravenes subsection (1), (4), or (5) is guilty of an offence and liable, on summary conviction, to a fine of up to $5,000.
"Contravention of section 8 or 10 creates a conflict of interest.
"11.(1) A Minister who contravenes section 8 is in a conflict of interest.
"(2) A Member who, as a former Minister, contravenes section 10 is in a conflict of interest.
"Restrictions on Cabinet awarding contracts to former Ministers
"12.(1) The Cabinet and its members and an employee of a department of the Government of the Yukon shall not knowingly,
"(1) award or approve a contract with, or grant a benefit to, a former Minister until six months have passed after the date he or she ceased to hold office; or
"(b) award or approve a contract with, or grant a benefit to, a former Minister who has, during the six months after the date that he or she cease to hold office, made representations to the Government of the Yukon in respect of the contract or benefit; or,
"(c) award or approve a contract with, or grant a benefit to, a person on whose behalf a former Minister has, during the six months after the date he or she ceased to hold office, made representations to the Government of the Yukon in respect of the contractor benefit.
"(2) Paragraphs 1(a) and (b) do not apply to appointment as a public officer as defined in the Financial Administration Act, nor to appointment to an office established by an act.
"(3) Subsection (1) does not apply if the conditions on which the contract or benefit as awarded, approved, or granted are the same for all persons similarly entitled.
"Exceptions to sections 10 and 12
"13.(1) Sections 10 and 12 do not apply if the commission has, on the application of the former Minister, advised that although there is or would be a conflict of interest the conflict is or would be so remote or insignificant that it should not disqualify the former Minister from accepting the contract or benefit in question.
"(2) The commission's advice in response to an application under subsection (1) is conclusive for the purposes of this Act so long as the relevant facts on which the advice is based are accurate and complete."
Mr. Chair, I move that you report progress on Bill No. 50.
Hon. Mr. Phillips: I move that the Speaker do now resume the Chair.
Motion agreed to
Speaker resumes the Chair
Speaker: I will now call the House to order.
May the House have a report from the Chair of Committee of the Whole?
Mr. Abel: The Committee of the Whole has considered Bill No. 50, entitled Conflict of Interest (Members and Ministers) Act, and directed me to report progress on it.
Further, the Committee of the Whole has considered Bill No. 71, entitled Engineering Profession Act, and Bill No. 88, entitled Yukon Foundation Act, and directed me to report them without amendment.
Further, the Committee of the Whole has considered Bill No. 99, entitled Ombudsman Act, and directed me to report it with amendment.
Speaker: You have heard the report of the Chair of Committee of the Whole. Are you agreed?
Some Hon. Members: Agreed.
Speaker: I declare the report carried.
Hon. Mr. Phillips: I move that the House do now adjourn.
Speaker: It has been moved by the Hon. Government House Leader that the House do now adjourn.
Motion agreed to
Speaker: This House now stands adjourned until 1:30 p.m. tomorrow.
The House adjourned at 9:29 p.m.
The following Legislative Returns were tabled April 26, 1995:
Health Investment Fund: funded projects; amounts budgeted and spent from 1991-92 to 1994-95 and amount carried forward to 1995-96 (Phelps)
Oral, Hansard, p. 1514 and 1548
Whitehorse General Hospital change orders as at April 10, 1995 (Phelps)
Oral, Hansard, p. 1786