Winnipeg Free Press - PRINT EDITION

Conflict of interest laws need correcting: lawyer

Courts need less drastic options for penalties, Matas says

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Lawyer David Matas says conflict of interest laws need to be amended after courts found Mayor Sam Katz not guilty of violating the conflict of interest law when his office hosted a 2010 Christmas dinner for staff and councillors at a restaurant he owned at the time.

Matas, who argued the case for restaurant manager Joe Chan, believed judges repeatedly ruled against his client because they didn't want to be seen as causing an early election.

"Something is sadly amiss in our conflict of interest laws to allow this... to have no legal consequence," Matas said. "The laws need amending if the present laws give a green light to this."

Matas was reacting to the decision of the Supreme Court of Canada this week not to hear an appeal by Chan of a Manitoba Court of Appeal decision that upheld a lower court ruling Katz had not violated the conflict of interest law.

'The laws need amending if the present laws give a green light to this...'

-- David Matas

Katz's lawyer Robert Tapper said the Supreme Court thought so little of Chan's case they only spent a week considering the application before dismissing it, adding it usually takes the court up to three months or longer before deciding whether an application has merit.

Tapper said Chan lost his case before three different courts, adding Matas should give up.

"It might be time to recognize this was a witch hunt," he said in an email response to the Free Press.

Chan, who manages another restaurant and who used to work for Coun. Harvey Smith, alleged Katz broke the law and used his influence to have public money spent at a restaurant he owned at the time but subsequently sold.

Chan lost his first court challenge in April last year, when Queen's Bench Justice Brenda Keyser said the conflict of interest law only applied to decisions of council; and that she had the discretion to refuse to declare a conflict if she thought the conflict did not warrant the only penalty the court could apply -- throwing him out of office and ordering a new election.

Chan appealed Keyser's decision and the Manitoba Court of Appeal ruled in October that Keyser was wrong in concluding the conflict of interest law applied only to decisions taken at council meetings -- that it also applied to the restaurant scenario.

However, the Appeal Court said there was no evidence to support Chan's allegation Katz had influenced his staff to choose to hold the Christmas bash at his restaurant.

But the Appeal Court said its ruling should not be interpreted to mean it approved of the decision to hold the Christmas party at Katz's restaurant, "nor do we express any comment on whether it meets appropriate ethical standards for elected officials."

The Appeal Court also supported Keyser's position the courts have the discretion to not declare a conflict even if one occurred because, in their opinion, the penalty outweighs the offence.

Matas said the discretion given to the courts in the law should be removed, adding a Manitoba Law Reform Commission report in 2000 advocated changing the legislation to provide the courts with alternative, less punitive penalties than throwing a politician out of office and holding a new election.

Matas said the law reform commission suggested other penalties could include a reprimand, a fine, an order of restitution, suspension of the conflicted politician, as well as a declaration the conflicted politician's seat is vacant.

"The courts considered forcing an election too drastic, even when there was an obvious conflict," Matas said. "Giving them less drastic options would mean that the courts would be more likely to confront conflict directly.

"The discretion to say no, even when there is a conflict, needs to be abolished."

aldo.santin@freepress.mb.ca

 

Republished from the Winnipeg Free Press print edition February 15, 2014 A9

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