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Audit should prompt provincial review: expert

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As damning as the real estate audit by the consulting firm EY was when it arrived last week at city hall, it found no evidence of illegality.

But a former Manitoba deputy minister of justice doesn't believe it should end there.

Having read Free Press stories on what the audit discovered, Bruce MacFarlane contends Manitoba Justice should review the 192-page report.

I reached the highly accomplished and respected University of Manitoba law professor at a legal conference in Halifax.

Initially I had asked him the question that's on the minds of many Winnipeggers, some of whom have already answered it for themselves.

Should police be called in to investigate? Starting specifically with the audit findings and whether anyone at city hall could be charged with criminal breach of public trust.

As I was saying, MacFarlane suggested Manitoba Justice should make that determination.

"I think there should be an initial screening to decide if it rises to a certain level, and if it does, I think it should go over (to police)."

MacFarlane pointed out municipalities are created through provincial statutes and the law gives Manitoba Justice "a broad mandate to see that the province and municipalities conduct their affairs in accordance with the law."

That's what gives Manitoba Justice not only the authority but the responsibility to look into cases in which abusing the public trust could be an issue. MacFarlane knows first-hand about that responsibility and the process of screening audit findings to determine whether they merit a police investigation. During his time as deputy minister of justice, he was tasked with screening the legal ramifications of the Crocus Investment Fund scandal.

In the real estate audit case, the Justice Department would have to look at the report's findings and measure them against Section 122 of the Criminal Code -- breach of trust by a public official -- and the elements that have to be proved.

The section reads: "Every official who, in connection with the duties of his office, commits fraud or a breach of trust, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person."

These are the elements of the offence that any police investigation ultimately would have to satisfy if charges were to result. Most importantly, the conduct of the person would have to have had "the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt or oppressive purpose."

As MacFarlane suggested, though, even for a case to be referred to police for investigation -- ideally the RCMP in this instance, not the hopelessly conflicted city police -- the findings have to rise to a certain level.

"Criminal breach of trust does have to reach a pretty high threshold," MacFarlane said. "Bad judgment and carelessness, that doesn't reach criminality."

But, as MacFarlane noted, a police investigation would bring more powers, resources and a different focus than the audit.

The auditors used internal emails to help them follow the decision-making process of how taxpayer money was spent in more than 30 real estate transactions. Given the green light by Manitoba Justice, police could follow the decision-making -- and the money -- further down the city's roads.

And maybe even beyond.

On Monday, I asked a provincial spokeswoman if Manitoba Justice was looking into the case or planned to.

The spokeswoman's answer arrived via email late the same afternoon.

"I can tell you that the province is not currently considering referring the matter for additional investigation."

I was about to take that as an amber, not a red light, when a followup email arrived from the flood-focused, crisis-managing Selinger government.

It was a predictable, if lamentable, addendum.

"The mayor and city council are elected to respond to the concerns of Winnipeggers and address the issues of their government. They commissioned the audit and they have the ability to respond to the matters it identifies or refer it for further review."

Oh yeah. Well I've got a bulletin for Greg Selinger.

You were also elected to respond to the concerns of Winnipeggers. In fact, without Winnipeggers, you won't get elected again.

Now, go pass another sandbag, Mr. Premier.

Passing the buck to a hopelessly conflicted mayor and inept city council is gutless.

 

gordon.sinclair@freepress.mb.ca

Republished from the Winnipeg Free Press print edition July 8, 2014 B1

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