Unresolved issues from ethics commissioner’s report

Opinion

Manitoba’s ethics commissioner, Jeffrey Schnoor, (supported by outside lawyer Sherri Walsh) performed a valuable public service with his investigation and preparation of an impressive inquiry report (released May 21) into the unconstitutional and ethically problematic behaviour of then-premier Heather Stefanson and three other cabinet ministers in the former Progressive Conservative government.

The misconduct occurred during the transition period after the NDP won the Oct. 3, 2023 election and before the swearing in of the Kinew government. It involved interactions among a number of public and private sector actors, but the commissioner’s authority was limited to the complaints of wrongdoing levelled against the premier and her three cabinet colleagues.

The story of the complaints raised by an NDP MLA about the breach of the caretaker convention, which is meant to limit outgoing governments to routine, non-contentious and easily reversible decisions, and the related violation of a provision of the new conflict of interest law, which prohibits ministers from improperly furthering the interests of another individual or organization (in this case the Sio Silica company), has been told several times in this newspaper, so it will not be repeated here.

Instead, I want to do two things: explain why commissioner Schnoor’s report is so important and identify some serious, unresolved issues arising from the report. I write from the premise that a healthy and effective democracy depends on a substantial amount of responsibility, honesty, trustworthiness, self restraint, transparency and accountability on the part of everyone involved.

The Schnoor report illustrates the value of having an independent officer of the legislature investigate breaches of laws and democratic norms in a thorough and fair manner to arrive at objective findings, to identify those actors who failed to act responsibly and who should be held accountable, and to make recommendations to prevent a recurrence of problems.

The commissioner had to deal with complicated factual circumstances, conflicting interests and claims, resistant respondents with selective recall or amnesia concerning events, contradictory testimony, and the requirement to balance limited confidentiality with as much disclosure as possible to serve the public interest. He demonstrated imagination and diligence in using different methods and sources to gather evidence for informed judgments.

By providing detailed descriptions of the interactions and communications among the key actors, the report provides a rare glimpse into the usually hidden face-to-face decision-making which takes place in a relatively small political system like Manitoba.

The caretaker convention depends on politicians treating its requirement for restraint during the transition period as binding. It is clear from the report that Stefanson and the other ministers did not take it seriously, apparently because they accepted the claims of their “political friends” in Sio Silica that the project required urgent approval before the incoming NDP government torpedoed it.

On Dec. 28, 2023, another former PC minister, Rochelle Squires, wrote in this paper she was told Stefanson could not personally push the project forward because she had an unspecified “conflict” so she enlisted her deputy premier to do it. The commissioner found no direct evidence of a conflict of interest. He sought, but could not obtain, a full list of corporate Sio Silica shareholders, so his conclusion that neither the premier nor the other three ministers stood to gain financially had to be based on their sworn testimony alone. Nevertheless, their behaviour showed — in this instance at least — disrespect for the fundamental democratic values mentioned above.

The PC government’s determination to approve the project put senior public servants between a rock and a hard place: they are meant to be responsive to ministers but are also entitled to resist, even refuse to act, when they are asked to do something improper.

In this instance, public servants acted appropriately by identifying options but refusing to be active participants in a politically motivated decision. The deputy minister of the environment and the director of licensing refused to fast-track approval and rightly took their concerns to the most senior public servant, the clerk of the executive council.

There was an extensive lobbying campaign of formal and informal actions by company officials and “for-hire” lobbyists to obtain the license. Those interactions were persistent, including an evening spent in the corporate suite at a Bomber game by the deputy premier, who insisted license approval was not discussed.

The report reveals a strong impulse within the former PC government to accommodate the interests and concerns of the company. For example, draft wording for the environmental license was sent to Sio Silica to ensure its regulatory requirements were acceptable.

For legal reasons, this aspect of the case was not directly investigated by the commissioner, who also happens to double as the lobbyist registrar. Manitoba’s regulations on lobbying are among the weakest in the country, so a search of the registry would probably not disclose much about the content and the targets of corporate messages. A stronger act is required.

Accountability, the requirement to answer and face consequences for misconduct, is a central requirement of democracy. The commissioner recommended hefty fines for the three ministers, recommendations which require approval of the legislature. Apart from damage to their reputations, other key actors, like Sio Silica board member, David Filmon, a prominent Conservative, paid no price for their attempts to manipulate the approval process.

Given this episode and earlier ethical lapses, the PC party, under new leader Obby Kahn, must take visible steps to promote a internal culture of integrity if the party hopes to regain public trust.

Paul G. Thomas is professor emeritus of political studies at the University of Manitoba.