3.1 In order to inform and report on this aspect of the process, it is helpful at the outset to review the main allegations on the part of the Minister and the essential response of the Conflict of Interest Commissioner. The allegations of the Minister articulated by the committee in advance of the hearing are as follows:
(a) That the Conflict of Interest Commissioner, as a result of discussions and/or an interview with Lee Selleck of CBC on March 15, 2001, became aware of the details of an alleged conflict of interest infraction by the Minister. The Minister alleges that at this stage, the Conflict of Interest Commissioner was made aware by Mr. Selleck that he had information from the corporate registry that the Minister remained listed as the director of certain private company or companies, and that he had traveled to Hay River to investigate this matter. The Minister alleges that the subsequent actions of the Conflict of Interest Commissioner, including her discussions with the media, must be seen through the prism of this prior knowledge, and that the prior knowledge affected her approach and the nature of her comments to the press concerning the matter, Mr. Speaker;
(b) That on the basis of the Conflict of Interest Commissioner's knowledge of the alleged or potential infraction by the Minister, the comments of Ms. Roberts made to the media must be interpreted to be in reference to the Minister and not hypothetically with respect to all or any Members, and further that the gist of such comments constituted an invitation to the public at large to file a complaint such that an investigation could be undertaken;
(c) That upon Mr. Rowe contacting the Conflict of Interest Commissioner, the exchange of e-mail correspondence which occurred between the two, particularly during the period March 30, 2001 to April 2, 2001, went beyond the Conflict of Interest Commissioner assisting Mr. Rowe to articulate his complaint and constituted coaching or framing of the complaint against the Minister; and
(d) That despite the Conflict of Interest Commissioner's awareness as alleged of a potential problem on or about the 15th of March, 2001, conflict avoidance advice was not provided to the Minister either at that time or in response to a written request on April 4, 2001, for conflict avoidance advice as permitted by section 98 of the act.
3.2 Mr. Speaker, while these allegations constitute the main thrust of the position of the Minister, a number of other issues were raised by her in support of her apprehension that the Conflict of Interest Commissioner would not bring an open, fresh and entirely objective approach to the investigation of the complaint lodged by Mr. Rowe. These concerns included the following:
- • That in the Conflict of Interest Commissioner's previous investigation of a complaint against the Minister filed by Michael Miltenberger, the Member for Thebacha, the Conflict of Interest Commissioner met with the Minister and inquired of her as to why the Minister did not direct the trustee of her blind trust to effect transfer of the vehicle in question to her name personally. The Minister was concerned respecting this query as in her view it evidenced, at a minimum, a complete lack of understanding on the part of the Conflict of Interest Commissioner that the Minister was prohibited by the terms of the blind trust arrangement from providing any direction to the trustee respecting corporate matters;
- • That during the course of the investigation of the Miltenberger complaint, the Conflict of Interest Commissioner advised the Minister in writing that she would provide a draft of her investigation report to the Minister in advance of it being tabled in the Legislative Assembly. The Minister was not provided with a draft report and her first knowledge of it was at the time of the tabling of the report in the House;
- • The Conflict of Interest Commissioner did not specify to the Minister in the Miltenberger complaint the section which she considered the Minister may have breached. Despite the lack of notice, the Conflict of Interest Commissioner found the Minister in breach of section 75 of the act. This section was never previously mentioned or discussed with respect to the complaint or the Commissioner's investigation. The Minister alleges that, having no notice that this was a breach being considered by the Conflict of Interest Commissioner, she could not provide any response or answer to this allegation;
- • That in the report of the Miltenberger complaint tabled in the Legislative Assembly, the Conflict of Interest Commissioner stated that she had concerns about the legislation generally and some of the limitations on her authority contained in the present act, particularly her ability to impose sanctions in the circumstances;
- • That in the Miltenberger complaint tabled in the Legislative Assembly, while the Conflict of Interest Commissioner dismissed the complaint, she went on to suggest that the Legislative Assembly could consider imposing sanctions. In the view of the Minister, there was no ability on the part of the Conflict of Interest Commissioner to suggest the imposition of any sanctions when the complaint had been dismissed. The matter was completed and the suggestion of sanctions when a complaint had been dismissed and concluded was disturbing;
- • That on January 5, 2001, the Conflict of Interest Commissioner, unsolicited, corresponded with the Minister advising that she had concerns about the adequacy of the Minister's blind trust agreement, despite the approval of that agreement by the prior Acting Conflict of Interest Commissioner, Robert Clark. Despite expressing concerns, the Conflict of Interest Commissioner did not provide the Minister, in her view, with any definitive advice as to how to allay those concerns;
- • That the Conflict of Interest Commissioner suggested to the Minister, on more than one occasion, that the best solution to her situation would be for the Minister's husband to divest himself of any interests he had in the companies in question. The Minister alleged that such advice ran contrary to any previous advice or philosophy associated with family-run businesses;
- • That in a telephone conversation between the Conflict of Interest Commissioner and John Bayly on March 26, 2001, the Conflict of Interest Commissioner confirmed that Lee Selleck had previously provided her with information concerning the alleged infraction of the Minister, namely the Minister remaining a director of certain privately owned corporations.
3.3 Mr. Speaker, the Conflict of Interest Commissioner, in her written submissions to the special committee and in her evidence provided at the hearing in this matter, addressed these concerns as follows:
(a) That she did not have specific knowledge of any alleged infraction at the time of her conversation with Mr. Selleck on March 15, 2001. In any event, even if she did have such knowledge, it did not affect her investigation of the Rowe complaint, nor could any reasonable person conclude that such knowledge would affect her investigation of the complaint;
(b) That when the Conflict of Interest Commissioner was contacted by the media subsequent to the airing of the Northbeat television program March 26, 2001, which detailed the alleged infraction of the Minister, the Conflict of Interest Commissioner specifically stated that she would not discuss any Member's arrangements in particular but would speak to the responsibilities of Members under the act generally and the role of the Conflict of Interest Commissioner respecting investigation of complaints;
(c) That the contact with Mr. Rowe concerning the filing of his complaint was with a view to requiring Mr. Rowe to properly articulate his complaint and properly provide grounds and objective evidence for the complaint. Such actions were taken by the Conflict of Interest Commissioner with a view to ensuring that only properly formulated complaints against Members, including this complaint against the Minister, would be the subject of investigation by her;
(d) That it was neither the role nor the responsibility of the Conflict of Interest Commissioner to alert or apprise the Minister of any suspected infraction. Rather, it is the responsibility of Members to ensure that their affairs are ordered in compliance with and pursuant to the provisions of the Legislative Assembly and Executive Council Act;
(e) That with respect to the Miltenberger complaint and report generally, due to the timing considerations associated with the House rising in the fall of 2000, it was not possible for the Conflict of Interest Commissioner to provide a draft report to the Minister, although she made an effort to place the report in the hands of the Minister some hours in advance of it being tabled in the House. The Conflict of Interest Commissioner remained of the view that the House could generally sanction a Member pursuant to parliamentary privilege although such sanctions would not be available pursuant to the Legislative Assembly and Executive Council Act. The Conflict of Interest Commissioner further stated that it was entirely appropriate for her to provide commentary on the legislation at any point, including within the context of an investigation report regarding a Member tabled in the Legislative Assembly; and
(f) Mr. Speaker, that in corresponding with the Minister on January 5, 2001, with respect to the provisions of the blind trust agreement, the Conflict of Interest Commissioner was attempting to assist the Minister respecting vulnerability arising from the operation of family owned businesses which are the subject of blind trust agreements. The Conflict of Interest Commissioner further stated that she provided the Minister with various forms of trust agreements which they could discuss, but that ultimately it was the responsibility of the Minister to retain such expertise, including that of trust lawyers or accountants, to assist her with properly ordering her affairs. The responsibility of the Conflict of Interest Commissioner was restricted to approval of such arrangements and not the development or creation of such solutions. Similarly, if concerns or allegations were raised in the public domain respecting possible infractions, it was the responsibility of the Minister to attend to such actions as may be required. It was not the responsibility of the Conflict of Interest Commissioner to alert or advise a Member of such allegations.
- 4 The responsibility of the committee in assessing the question of apprehension of bias is not to determine whether there was actual bias on the part of the Conflict of Interest Commissioner in her dealings with Minister Groenewegen. Rather, the responsibility of the committee is to assess and determine whether an objective, reasonable and informed person would have legitimate concerns, in light of all the facts and circumstances, about whether the investigation could be conducted by the Conflict of Interest Commissioner in a completely objective and dispassionate fashion.
- 5 While it is difficult to remove individual characteristics, attitudes and perspectives from this process, the committee must bring an objective and detached analysis to the issues.
- 6 It became apparent that the question of the extent to which Mr. Selleck advised or discussed with Ms. Roberts on or about March 15, 2001, the particulars of any alleged infraction by Minister Groenewegen was an important factual component to the consideration of this issue.
- 7 It is regrettable and most unfortunate that Mr. Selleck refused to testify and provide information, which could have been of assistance to the committee in resolving this issue.
- 8 While his conduct will be the subject of comment in another part of this report, the committee wishes to state unequivocally that the failure of Mr. Selleck to even apprise himself of the nature of the information sought from him, and the importance it might have to the determination of issues before the committee, was both frustrating and distressing.
- 9 Mr. Speaker, the committee did have available to it a transcript of the taped telephone conversation which occurred between Ms. Roberts and Mr. Bayly on March 26, 2001. During the course of this telephone conversation, the interaction between Ms. Roberts and Mr. Selleck was discussed. Ms. Roberts stated during the course of this telephone conversation, and I am quoting:
...and I don't know how he's clipping together the piece, but it was on conflict generally and he did tell me he'd gone to Hay River and done some investigation and asked me some hypotheticals....
...let me just try and think of how he phrased it. I think what he specifically asked me was he had done a company search and he noticed Jane's name still on the company registry as a director of the company.
- 10 Ms. Roberts indicated during the course of her testimony before the committee that at the time of preparation of her written submissions to the committee, which were received June 29, 2001, she did not have a specific recollection of this information having been provided to her by Mr. Selleck. Rather, her recollection was to the contrary. Indeed, at the time of providing evidence at the hearing some months later, her recollection could not be better than that.
- 11 It is open to the committee to conclude that Ms. Roberts' recollection of her dealings with Mr. Selleck on March 15, 2001, would have been fresher in her mind on March 26, 2001, than they were some months later.
- 12 Given the clear and unequivocal statements made during the course of this telephone conversation, the committee concludes that the Conflict of Interest Commissioner did, in fact, on or about March 15, 2001, have information provided by Mr. Selleck of the Minister remaining a director of companies in contravention of the act.
- 13 Mr. Speaker, in the view of the committee, this single incident, as with all other allegations taken in isolation, are not determinative of an apprehension of bias. Nevertheless, the committee has carefully considered that on the 14th of March, 2001, one day prior to Ms. Roberts' discussions with Mr. Selleck, she acknowledged receiving the Minister's annual disclosure statement in which the Minister confirmed that she did not occupy any position of director with respect to any company.
- 14 Having this information in hand one day and being confronted with serious allegations to the contrary the following day, the committee is at a loss as to why the Conflict of Interest Commissioner would not have contacted the Minister to resolve this apparent contradiction. At this point in time, no complaint was pending. The provision of the annual disclosure statement was freshly available to the Conflict of Interest Commissioner.
- 15 At the very least, Mr. Speaker, one would have thought that the Conflict of Interest Commissioner would have contacted the Minister to either provide fresh advice or receive confirmation of the information provided by the Minister in her disclosure statement.
- 16 While it is not the responsibility of the Conflict of Interest Commissioner to react to every rumour and innuendo, surely the provision of this information by the CBC ought to have alerted the Conflict of Interest Commissioner to the fact that there was a significant contradiction and potential problem.
- 17 It is accepted that when the Minister herself became apprised of the problem on March 21, 2001, as a result of an interview with Lee Selleck, the onus shifted to the Minister to take steps to resolve the problem. She in fact contacted the Conflict of Interest Commissioner not once but twice on this date but did not, during either conversation, seek advice or assistance from the Conflict of Interest Commissioner regarding the directorship issue. However, during the period March 15, 2001, to March 21, 2001, the Minister had no awareness that there was any problem. Indeed, Mr. Selleck's requests for an interview were entirely puzzling to her.
- 18 On the other hand, Mr. Speaker, the Conflict of Interest Commissioner during this period was apprised of the potential problem, and she took no steps to confirm the facts or contact the Minister regarding the contradiction which was now apparent to her.
- 19 It is this fact, in conjunction with other accumulated circumstances, which in the view of this committee, give rise to a reasonable apprehension of bias. These additional and other accumulated circumstances include:
- • The failure of the Conflict of Interest Commissioner to provide notice to the Minister of the alleged breach of section 75 in the Miltenberger complaint and report. The committee also notes that this same problem occurred with respect to the investigation report on the Rowe complaint. However, this report followed the initial application regarding bias and therefore cannot be taken into consideration in this issue;
- • The invitation by the Conflict of Interest Commissioner to the Assembly to consider sanction of the Minister despite the dismissal of the complaint in the Miltenberger report;
- • The exchange of e-mail correspondence with Jack Rowe, which marked a departure from her prior approach in investigating the Miltenberger complaint, by asking that a specific section be articulated by Mr. Rowe, and exploring with Mr. Rowe facts that at best seemed peripheral to the substance of the complaint. While it is open and at times will be required that the Conflict of Interest Commissioner assist a complainant in properly formulating a complaint, in the view of the committee the exchanges with Mr. Rowe pushed the envelope of such intentions and bordered on going too far in assisting in framing the complaint;
- • The failure of the Conflict of Interest Commissioner to notify the Minister at the point that she considered Mr. Rowe to have lodged a formal complaint (April 2, 2001), waiting instead until April 9, 2001, to so notify the Minister. She stated on April 2, 2001, that she had accepted the communication from Mr. Rowe as a complaint but went on to indicate that she would not be taking action on it on the basis of the information provided to that point. It is unclear what she intended to convey by this communication. In any event, she nonetheless went on to take steps at this point that appear very much to be in the nature of an investigation; and, Mr. Speaker,
- • The fact that the Conflict of Interest Commissioner continued to have discussions with the media after her March 15, 2001, discussions with Mr. Selleck. The Conflict of Interest Commissioner would have known, or at least would have been alerted at this stage, that there was a potential problem concerning Minister Groenewegen. Her willingness to discuss matters with the media at this point, even if stated to be in general and in hypothetical terms, at best showed poor judgment on the part of the Conflict of Interest Commissioner. Given that this matter was now developing a level of controversy in the public domain, a fact which was known to the Conflict of Interest Commissioner, she ought to have refrained from any comment to or interaction with the media.
- 20 Together, Mr. Speaker, all of these circumstances cumulatively give rise to a reasonable concern about the objective and impartial approach of the Conflict of Interest Commissioner regarding this complaint and investigation.
- 21 In the view of the committee, a reasonable, objective and informed person viewing these circumstances, would have a reasonable apprehension that the Conflict of Interest Commissioner may be bringing a biased perspective to the consideration of these matters. This is particularly the case when it was clear, in the view of the committee, that the relationship between the Minister and the Conflict of Interest Commissioner was at this point in time troubled or plagued with mutual difficulties.
- 22 The Conflict of Interest Commissioner and the Minister each adopted stances throughout this matter which tended to deflect their own respective responsibilities for matters and events. This does not speak well of either individual. However, the role of the Conflict of Interest Commissioner is to deal with all Members of the Legislative Assembly in a fair and helpful manner, irrespective of any challenges that a particular Member may pose in terms of his or her personal approaches.
- 23 In the view of the committee, the Conflict of Interest Commissioner did not rise to this standard, which the committee fully acknowledges is both difficult and challenging.
- 24 This being said, in the view of the committee, the Minister is not vindicated by this finding. Her actions throughout the matter were characterized by mistrust and preconceived notions regarding the competence of the Conflict of Interest Commissioner. While an objective and informed bystander would, in the view of the committee, have a reasonable basis to be concerned respecting bias of the Conflict of Interest Commissioner, the Minister to a large degree has been the author of her own misfortunes.
- 25 Given the objective standards required in the apprehension of bias analysis, this cannot detract from the finding of that reasonable apprehension, Mr. Speaker.
- 26 The actions of the Minister do not speak favourably of her as an elected Member and a representative of Cabinet in this government.