OPINION

OF
THE CONFLICT OF INTEREST COMMISSIONER
PURSUANT TO SECTION 19 OF THE
MEMBERS' CONFLICT OF INTEREST ACT

IN THE MATTER OF APPLICATIONS BY

DAVID EBY, MLA (VANCOUVERPOINT GREY) AND
DUFF CONACHER
WITH RESPECT TO ALLEGED CONTRAVENTIONS OF THE
MEMBERS' CONFLICT OF INTEREST ACT
BY THE HONOURABLE CHRISTY CLARK, MLA
(WESTSIDE-KELOWNA) AND PREMIER OF BRITISH COLUMBIA

City of Victoria
Province of British Columbia
May 4, 2016

EXECUTIVE SUMMARY

In 1989 and 1990, Ontario and British Columbia were the first provinces to pass Conflict of
Interest legislation providing for mandatory annual disclosure by Members of assets and
liabilities in a process supervised by Commissioners. Other provinces followed over the years,
as did the Federal Parliament.

In order to find the existence of a conflict of interest, or an apparent conflict of interest, the
threshold question is whether there is an identifiable private interest that has been advanced. A
Member must be found to have preferred his or her private interest over their public duty.
In British Columbia, the Members Conflict of Interest Act (the Act) defines and engages both
direct conflicts and apparent conflicts of interest.

For the last decade at least, the established parties in British Columbia have raised funds at a
variety of events. The existence of so-called private or by invitation events were well
known as an opportunity to raise the significant amounts of funds necessary from generous
supporters to operate the party apparatus and to finance expensive general election campaigns.
The party in government wanted to solidify its support and the party in opposition was anxious to
expand its donor base to include those not previously identified as supporters.
In recent months, the practice of politicians participating in exclusive fundraising events has
been hotly debated, in British Columbia and across the country. Typically, the fundraising
events in the spotlight are those where a party leader or cabinet minister is in attendance; the
ticket price is relatively high (ranging from several hundred to several thousand dollars per
person); and the number of attendees is relatively small. The general concern expressed is that it
is inappropriate for politicians to sell access to themselves in this manner.

At the beginning of April 2016, I received two separate requests to address this issue.
Mr. Duff Conacher of Democracy Watch, and Mr. David Eby, the Member for
Vancouver-Point Grey, alleged that Ms. Christy Clark, the Member for Westside-Kelowna and
Premier of British Columbia, had breached the Act by participating in a number of such
exclusive fundraising events. Both Mr. Eby and Mr. Conacher are accomplished and
experienced lawyers.

In his original submission, Mr. Eby described the private interest at stake for the Premier as
raising money for her own election prospects and those closely associated with her in the BC
Liberal Party. Twenty-six days later and after counsel for the Premier had responded to the
original request, Mr. Eby filed further grounds, alleging that the Premier had a direct, private
interest in the donations from exclusive events because the central party returns this money,
in part, to the Premier through her Leaders Allowance. Such allowances have been paid by the
BC Liberal Party to its leaders since 1993 and its existence has been disclosed annually in the
comprehensive disclosure process established by the Act. The Act does not require Members to
disclose dollar figures. According to media reports and confirmed by the Premier, the amount of
the allowance has varied over the years. In 2015, the amount paid was set at $50,000.
In a further submission, Mr. Eby went so far as to say that the donations may as well be passed
directly to the Premierin an envelope and described the Leaders Allowance as being
laundered through the Liberal Party. Mr. Eby argued that the Premiers private interest has
thus been furthered and the Premier must now recuse herself from any decision involving donors
who attended exclusive fundraising events.

The grounds for Mr. Conachers single request are slightly different. He alleged that the
donations received at exclusive fundraising events are gifts or personal benefits which must
not be accepted under section 7 of the Act. It is convenient to address Mr. Conachers concerns
in this opinion rather than separately.

There may be circumstances where receiving a political donation places a Member in a conflict
or apparent conflict of interest situation. However, they are generally limited to situations where
a candidate receives a personal campaign contribution and due to a variety of other factors, is in
a position to return a favour to the person who made the donation. That was the outcome of
the first Opinion under the Act issued by Commissioner Ted Hughes of this Office in 1993
(Blencoe).1 However, contributions to the Party are different altogether, as such donations do
not benefit Members in a direct and particular way (Harcourt).2 In extensive briefs from the
applicants, neither has been able to refer to any decisions in British Columbia or elsewhere that
has held otherwise.

After considering all of the materials provided by the parties and their submissions, I am unable
to conclude that the donations received by the Liberal Party in the circumstances described
amount to a private interest for the Premier. Helping to boost the Partys financial wellbeing is
a political benefit, rather than a private financial one. Nor can the Premiers Leaders Allowance
paid to her by her Party be said to create a private interest that is furthered by the Premiers
attendance at exclusive fundraisers.

Ultimately, Mr. Eby conceded (in his final submission) that it was inaccurate to describe the
Leaders Allowance as a commission. In my opinion, there is no convincing evidence or
information to suggest that the Leaders Allowance is determined according to the success or
failure of exclusive fundraising events in which the Premier participates. The Premiers
private interest is not advanced by any particular donor or group of donors at these events. She
cannot, therefore, be in an apparent conflict of interest in relation to those donors.
The Act is entitled the Members Conflict of Interest Act and it is confined to conflict of interest
on a personal level. My jurisdiction, therefore, only extends to consideration of individual
Members private interests. The Act is not a moral code and I am not an arbiter of what may be
political morality in the campaign finance context.

http://www.coibc.ca/down/opinion/opinion_blencoe_1993.pdf

22

http://www.coibc.ca/down/opinion/opinion_harcourt_1995.pdf

With respect to Mr. Conachers concerns, the donations in question do not constitute a gift or
personal benefit. Whether or not a Member participates directly or indirectly in fundraising
activities for their Party, the donated money is never in the Members possession or under their
control. In the matters I have to decide, the funds raised at exclusive events are donated to the
BC Liberal Party and are not accessible for the Premiers personal use.

Political fundraising is a legal activity that is governed by the Election Act. Whether the rules
surrounding the limits on ticket prices to fundraising events, the advertising of such events, and
the disclosure of attendees should be changed is a matter worthy of public ferment and debate.
However, it is not appropriate for me, nor within my authority under the Act, to set parameters
for the scope and scale of party fundraising events. Ultimately those decisions must be made by
the Legislature in determining the campaign finance laws of this province. The Act is not a
universal solvent. In our democracy it is important that legislation not be overly broad. It is also
essential that legislation be interpreted in a way that is consistent with its real purpose and intent.

In the result, it is my opinion that the Premier has not contravened the provisions of the Act as
alleged in both of the matters that have been brought before me.

I.

INTRODUCTION

[1] By email on April 1, 2016, the Member for Vancouver-Point Grey, Mr. David Eby,
requested my opinion pursuant to sub-section 19(1) of the Members Conflict of Interest Act (the
Act) concerning Ms. Christy Clark, the Member for Westside-Kelowna and Premier of
British Columbia. That sub-section provides:
19(1) A member who has reasonable and probable grounds to believe that another
member is in contravention of this Act or of section 25 of the Constitution Act
may, but application in writing setting out the grounds for the belief and the
nature of the contravention alleged, request that the commissioner give an opinion
respecting the compliance of the other member with the provisions of this Act.
[2] The Act sets out the Commissioners three main roles: to provide advice to Members, to
oversee the disclosure process, and when allegations are brought against a Member, to provide
an opinion on whether the Act has been breached. Briefly, the purpose of the Act is to ensure
that Members do not benefit personally from the exercise of their public duties. The Act is not a
moral code and cannot be used as a universal solvent for any perceived ill that may impact on the
workings of government. I have no authority to go beyond the jurisdiction granted to me under
the Act, or to impose obligations on the Members that are not articulated in the Act.

II.

ALLEGATIONS

[3] Mr. Eby reproduced excerpts from an article by Gary Mason that appeared in the Globe and
Mail on March 28, 2016.3
At a recent dinner hosted by Simon Fraser University chancellor Anne Giardini, 10
guests paid $10,000 each to mingle with Ms. Clark and later sit down to a multicourse
dinner. At a party fundraiser in Kelowna, a small group who paid $5,000 each got
quality time with the Premier at a non-advertised, private reception before the main
event. According to a source, admission to some of the more exclusive get-togethers with
Ms. Clark can be as high as $20,000.
[]
That has allowed the Liberals to retire their debt from the last election - estimated to be
more than $3 million and building a formidable war chest for next years campaign.
[]
3

Available online at http://www.theglobeandmail.com/news/national/pricey-meetings-with-clark-helping-fuel-bcliberal-fundraising-machine/article29413577/

Bob Rennie, chair of fundraising for the B.C. Liberals, estimated that between now and
the election next May, the party might organize 20 or more of the type of small, intimate
gatherings at which people can pay big money to get special access to Ms. Clark.
[]
Asked about the perception that people with money are buying privileged and potentially
financially beneficial access, Mr. Rennie said those paying $10,000 or more to attend
these intimate functions are often business leaders who support what the Liberals are
doing and want to help ensure the party stays in power.
[4] Mr. Eby alleged that the Premiers actions contravene sub-section 2(2) of the Act which
prohibits apparent conflicts of interest. That sub-section provides:
2(2)

For the purposes of this Act, a member has an apparent conflict of interest if there
is a reasonable perception, which a reasonably well informed person could
properly have, that the members ability to exercise an official power or perform
an official duty or function must have been affected by his or her private interest.

[5] Mr. Ebys position is that by participating in exclusive fundraising events, the Premiers
private interest has been furthered and the Premier must now recuse herself from any decision
involving donors who attended those events. He asked me to investigate who attended the
particular events noted in Mr. Masons article, and determine whether any upcoming or
concurrent decisions by the Premier as part of her public office are in conflict.
[6] The day before receiving Mr. Ebys request, I received a letter from Mr. Duff Conacher on
behalf of Democracy Watch. Mr. Conacher also referred to recent media coverage of
exclusive fundraising events hosted by the BC Liberal Party with Premier Clark in attendance.
Mr. Conacher alleged that donations for private, exclusive fundraising events constitute an
illegal gift:
Democracy Watch is not claiming that all fundraising events are illegal just highpriced, exclusive events where politicians sell access to themselves in return for a
donation. Low-priced, large, public events at which no one gets special access to the
politician are clearly legal under the conflict-of-interest laws because the donation is not
made to gain access to the politician (and therefore is not connected directly or indirectly
to their position).

[7] As a member of the public, Mr. Conacher asked me to declare that donations made at such
events are illegal gifts prohibited under sub-section 7(1) of the Act, as well as to determine
who has attended such events and monitor all policy-making processes that affect the donors to
ensure that no preferential treatment occurs. His request was made under sub-section 19(2) of
the Act, which provides:
19(2) A member of the public who has reasonable and probable grounds to believe that
there has been a contravention of this Act or of section 25 of the Constitution Act
may, by application in writing setting out the grounds for the belief and the nature
of the contravention alleged, request that the commissioner give an opinion
respecting the alleged contravention.
[8] Sub-section 7(1) of the Act provides:
7(1)

A member must not accept a fee, gift or personal benefit, except compensation
authorized by law, that is connected directly or indirectly with the performance of
his or her duties of office.

[9] Given the common factual matrix of Mr. Ebys and Mr. Conachers requests, I advised
Mr. Conacher that I would not be preparing a separate opinion in response to his request, as I
expected that the concerns he raised could be addressed in the opinion issued in response to
Mr. Ebys request.

III.

PROCESS

[10] I received Mr. Ebys letter by email at approximately 4:00 p.m. on Friday, April 1, 2016. I
confirmed receipt of his correspondence shortly thereafter, and immediately informed the
Premiers office of Mr. Ebys request, and provided of copy of his correspondence. Mr. Eby
apparently released his letter to the media simultaneously or soon after, as his request was
reported in the media that same day4. As a courtesy, I urge Members to refrain from making
their allegations public before my Office has had an opportunity to inform the Member who is
the subject of the allegations.

See for example B.C. NDP seeks probe into Liberals fundraising tactics, The Globe and Mail, April 1, 2016.
Available online at http://www.theglobeandmail.com/news/british-columbia/bc-ndp-seeks-probe-into-liberalsfundraising-tactics/article29503534/

[11] On Monday, April 4, 2016, I requested that the Premier respond to the allegations by April
15, 2016. I also informed Mr. Eby of this timeline and advised that he would have an
opportunity to review the Premiers response and provide further submissions. Given the high
degree of public interest in the matter, I expressed my expectation that submissions from both
parties would be provided expeditiously. I am grateful to them for their cooperation throughout
the process.
[12] As requested, on April 15, 2016, the Premier responded to Mr. Ebys allegations. Counsel
for the Premier confirmed the following:
1. The Premier, in her capacity as Leader of the BC Liberal Party, attends donor events such
as the dinner hosted by Ms. Giardini referenced by Mr. Eby. Nine individuals attended
this particular event. Seven of those contributed $10,000 each to the BC Liberal Party,
and two others contributed $5,000 each. Two other individuals who were invited but did
not attend, and made donations of $5,000 and $500 respectively.
2. It is the Premiers understanding that the money raised at such events goes to the central
BC Liberal Party and is reported in accordance with the Election Act.
3. All donations to the central Party go into a general account from which they are used as
the Party later decides.
4. Premier Clark is not personally involved in the organization or administration of Party
fundraising events.
[13] Mr. Eby provided a further submission in reply to the Premiers response on April 20,
2016. He suggested that the information provided by the Premier through her counsel was
entirely unreliable and inadmissible for a variety of reasons such as the statements are
paraphrased, edited and unsworn and because of the subordinate position of the person who
provided information on behalf of the BC Liberal Party.
[14] At this early information gathering stage, the usual process had been properly followed.
Mr. Eby made certain allegations against the Premier and the Premier responded to those
allegations in a written submission, as requested. To suggest that the Premier should have
provided copies of all correspondence, transcripts of conversations, sworn statements etc
supporting her responses is unreasonable. There is no basis on which to draw a negative
inference from the information provided as suggested by Mr. Eby.

[15] He added the assertion that the Premier had a direct, private interest in the donations
derived from exclusive events because the central party returns this money, in part, to the
Premier through her Leaders Allowance. He also raised concerns about the fact that the
Premier is represented by legal counsel, suggesting that the question of how the Premiers legal
counsel is paid is significant to the resolution of the complaint.

[16] On April 27, 2016, as the result of information reported in the media, Mr. Eby made further
amendments to his allegations. First, he indicated that in recent years the Leaders Allowance
has varied between $30,000 and $50,000. He alleged that:
Given the Premiers allowance varies from year to year, dependent on the financial
fortunes of the central party, this commission-like payout establishes a personal financial
benefit under the Act for the Premier. This benefit is directly related to her small, high
cost, backroom and dinner parties because the benefit fluctuates depending on the partys
fundraising. The Premiers role as the head of Cabinet adjudicating the interests of the
donors who pay to attend these dinners she hosts parties that fund, and if they are
successful, increase, her personal financial transfer from the party worth in excess of
$150,000 to the Premier.
[17] He went on to say:
The Premiers share of these donations may as well be passed directly to the Premier by
the attendees of her parties in an envelope at the beginning of the evening this conduct
is outrageous, completely problematic, and directly contrary to the public interest. The
laundering of donations through the party before they are passed to the Premier cannot
conceal the reprehensible activity that is taking place here which has benefitted the
premier in six figures
[18] A separate allegation was advanced that a conflict of interest arises in the administration
of the public benefit of free legal counsel. His argument was that the Premier was using public
money to litigate her right to fundraise for the BC Liberal party as she sees fit, and now to defend
her right to take a portion of that fundraising money for her own personal benefit.
[19] The Premiers counsel provided a further response on May 1, 2016, including a statement
from Ms. Sharon E. White, Q.C., who has been President of the BC Liberal Party since 1993.
Ms. White confirmed that donations to the central Party go into a general account of the central
Party and are never earmarked for a particular purpose; and that donors are not able to direct
their donation towards a particular expense including the Leaders Allowance. She also
9

confirmed that the Premier participates in a number of events for the central Party, including
fundraising events, but does not engage in the organization of these events.
[20] Ms. White stated that the Allowance is a longstanding administrative practice of the
central Party, pre-dating the current Premiers tenure as Leader. Central Party financial records
verifies (sic) the Allowance was provided from 2003 onwards; and corporate history confirms
the Allowance was provided annually starting in 1993. She explained that the Allowance is set
and approved by the central Partys Executive on an annual basis and does not fluctuate from
year to year. Rather, she indicated it has only increased since its inception 23 years ago. She
reported that the amounts paid to the Premier during her tenure were $42,000 in 2011, $44,000 in
2012, $45,000 in both 2013 and 2014, and $50,000 in 2015 and 2016. She added that the
amount of the Allowance is not based on any commission or formula, or tied to either general
fundraising totals of the Party or with the Leaders attendance at fundraising events or how much
might be raised in connection with those events, or the particular financial state of the Party. She
noted for example that in 2012, despite the Party running an operating deficit and being millions
in debt, the Allowance that year increased from the previous year.
[21] In respect of the payment of the Premiers legal fees, counsel for the Premier noted that
caucus funds are provided to each Party to spend within their discretion to support their
respective MLAs, and that an annual audit of these expenditures rests with the Legislative
Assembly Management Committee. Given that the Premier sits in caucus as the Member for
Westside-Kelowna, he submitted that engaging counsel to respond to a complaint alleging a
breach of the Act which alleges that the Member has misconducted herself is an appropriate
expenditure.
[22] Again, I provided the Premiers response to Mr. Eby, who requested further leave to reply
with a final submission. Based on the information provided by Ms. White, he accepted as factual
that the Allowance paid to the Premier cannot properly be described as a commission; and also
that donors to the central BC Liberal Party are not permitted to direct funds specifically to the
Premier. However, he maintained that the Leaders Allowance is still directly connected to
political donations by being entirely composed of political donations.
10

[23] Mr. Eby then made a new and further allegation that the increase in central Party activities
comes at the expense of her official role and submitted that the Premier may be in breach of
sub-section 9(1) of the Act which states:
9(1)

A member of the Executive Council must not

(a) engage in employment or in the practice of a profession,
(b) carry on a business, or
(c) hold an office or directorship other than in a social club, religious organization
or political party

if any of these activities are likely to conflict with the members public duties.

[24] For at least the last century in British Columbia, the Premier of the province has invariably
been the Leader of the Party that has been elected to form government. The two responsibilities
coincide and have been carried out by the same person. As a practical matter, it is difficult to
imagine any other political reality. I expect that for all Premiers there has been a time
management issue addressed by simply adding to the hours spent every day on public duties. In
my opinion, and in the context of section 9(1)(a), the activity of being Party Leader cannot be
properly interpreted as engag[ing] in employment. To contend otherwise is inconsistent with
the intent and purpose of the section.
[25] In my view, the issue of the Premiers legal expenses potentially being paid for out of
caucus funds, is irrelevant to the determination of this complaint. The engagement of legal
counsel has been triggered by Mr. Ebys allegations made pursuant to sub-section 19(1) of the
Act, which necessarily relate to questions about the Premiers conduct in her capacity as a
member. Whether her legal expenses are properly paid for under the rules that govern caucus
expenditures is not my determination to make.
[26] The fact that the Premier takes part in so-called exclusive fundraising events more or less
as described is not in dispute by either party. Accordingly, the issue for me to determine in this
opinion is whether participating in such events is prohibited by the Act. Specifically, the
questions I must answer are (a) whether the Premiers private interest is advanced by
participating in such events; and if so, whether there are circumstances that might place her in an

11

apparent conflict of interest situation; and (b) whether the donations represent a gift or personal
benefit under section 7.

IV.

DISCUSSION

[27] In order for there to be a violation of section 2, there must be an identifiable private
interest that can be advanced. In his original submission, Mr. Eby described the private interest
at stake for the Premier as raising money for her own election prospects and those closely
associated with her in the BC Liberal Party. In his surreply to the Premiers submission, Mr.
Eby added his belief that the Premier has a direct, private interest in the donations derived from
exclusive events because the central party returns this money, in part, to the Premier through
her Leaders Allowance.
[28] The Premiers position is that Mr. Ebys complaint does not allege any specific official
power or duty that was exercised or performed by the Premier at a time she had a private interest.
Rather, it more generally raises the issue of Members, on behalf of their political parties,
attending smaller, sometimes private, events involving relatively large donors to their Party. The
Premier submitted that any such donations do not constitute a private interest, and it follows that
there can be no apparent conflict of interest.

[29] Both Mr. Eby and the Premier cited two seminal opinions written by Commissioner Ted
Hughes in the formative days of this Office to support their position, the Blencoe opinion5 and
the Harcourt opinion6.

[30] Blencoe, the first opinion delivered by this Office in 1993, considered whether campaign
contributions could constitute a private interest. In that case, two long-time supporters of the
provincial NDP (Milne and Tait) provided important financial and other assistance to the
election campaign of Mr. Robin Blencoe. Soon after being elected, Mr. Blencoe was appointed
the Minister of Municipal Affairs. Milne and Tait stood to gain financially from a project that
required approval of certain by-laws, a decision that Minister Blencoe was called upon to make.

5
6

http://www.coibc.ca/down/opinion/opinion_blencoe_1993.pdf
http://www.coibc.ca/down/opinion/opinion_harcourt_1995.pdf

12

That decision was a discretionary one, and not an activity that a Member normally makes on
behalf of constituents.

[31] Commissioner Hughes commented:

Whether campaign contributions and assistance are described as pecuniary or non-pecuniary
interests or some hybrid, given the circumstances leading to this complaint, it is necessary to
consider them. Campaign contributions and assistance, whether financial or otherwise, can,
in my opinion, in some circumstances, be a private interest. I am conscious of the very real
purpose and difference between these kinds of contributions and other kinds of pecuniary or
non-pecuniary benefits that could pass to a Member. Indeed in our system of parliamentary
democracy, campaign contributions and assistance are to be encouraged and fostered and
must be seen in a positive light as an interest accruing not only to a political party but also to
the public generally; it is thus an interest clothed with the public interest. This is particularly
the case where the financial contribution is specifically directed to the candidate even though
it is payable to the party. It is also the case where the non-financial contribution on behalf of
a specific candidate (notwithstanding that it is also on behalf of the party that the candidate
represents) can include an array of activities from distributing leaflets, knocking on doors,
developing campaign strategies, public endorsements and fundraising. (emphasis added)
[32] The accumulation of factors led Commissioner Hughes to conclude that Mr. Blencoe was in
an apparent conflict of interest, as there was a reasonable perception that Blencoes ability to
carry out an official duty (i.e. approval of the by-laws) would be affected by his private interest
(i.e. contributions to his personal campaign from Milne and Tait).
[33] Mr. Eby correctly acknowledged that the mere fact that a Members private interest is
advanced by some activity is not sufficient for the Act to be engaged. What the Act prohibits is a
Member acting in his or her official capacity if there is an opportunity for the Member to
advance his or her private interest by doing so. He referred to the factors Commissioner Hughes
considered in Blencoe which led him to conclude that there was an apparent conflict of interest:

the timing of the contribution (the closer in time to the official act, the more relevant);
the significance of the contribution in relation to both the candidate and the contributor;
the motive for the contribution if that can be discerned and whether the candidate (now
Minister) was aware of the contribution prior to the exercise by the Minister of the
impugned official power, duty or function; and
whether the impugned decision involves an activity which a Minister normally engages in
on behalf of constituents because the Act provides that this would not be prohibited.

13

[34] Counsel for the Premier noted that all of the cumulative items that Commissioner Hughes
found constituted a private interest in Blencoe were contributions to Mr. Blencoe as an individual
candidate. Between Milne and Tait these contributions included:

financial contributions to Blencoe over the years;

working on at least 5 earlier Blencoe campaigns including as his official agent;
both designating contributions to Blencoes campaign, at least one of which was
considered relatively substantial, which designation was necessary since they did not
live in Blencoes riding;
soliciting and encouraging contributions for Blencoes campaign from employees;
allowing his endorsement and photo to be used on Blencoes campaign leaflet;
attending a strategy meeting on fundraising for Blencoes campaign;
assisting Blencoes campaign by knocking on doors, attending meetings and whatever
else needed to be done (at p. 31-33 of Blencoe).

[35] Counsel for the Premier submitted that the Blencoe opinion is relevant to contributions
made to a particular individual candidate, and is distinguishable from contributions made to the
central Party, as was the case in the Harcourt opinion, issued in 1995.
[36] In the Harcourt opinion it was alleged that the Premiers longstanding relationship with an
individual affiliated with NOW Communications placed the Premier in an apparent conflict
when government contracts were awarded to that company. Commissioner Hughes determined
that the Premier was not in a real or apparent conflict of interest, as no campaign contributions
were made directly to the Premier and there was no evidence that the Premier was involved in
deciding to whom contracts would be awarded or that he had knowledge of the contractual
arrangements.

[37] Commissioner Hughes elaborated on a number of important points in considering how the
term private interest should be interpreted in the context of political contributions. The
following excerpt from Harcourt is instructive:
Some may say that contributions to the Party may benefit the Premier more than they
would benefit any particular member. That may be so but I am of the opinion that the
distinction that I drew in the Blencoe Opinion between contributions to the candidate (or
redirected to his or her constituency) and contributions to the Party must be maintained.
Indeed, to fail to make that distinction when the Premier is the Member concerned would
not only be unfair to the Premier but could hamstring the operation of government.
14

Further, sight must not be lost of the fact that this is the Members Conflict of Interest Act
we are dealing with not a statute that goes beyond that important limitation. It is thus
only the private interest of the Member that is relevant. (emphasis added)
[38] Mr. Eby submitted that the Harcourt decision cited by the Premier as standing for the
remarkable proposition that a donation to the central Party can never, ever, be a private interest
of the Premier or any other Member except where that donation also satisfies the elements of
Criminal Code offences, does not stand for that proposition. With respect, the Premier did not
in fact suggest such a strict interpretation of Harcourt. The proposition her counsel actually put
forth was as follows:
This does not mean that there could never be a place for a valid complaint involving
donations to a Political Party. For example, as Commissioner Trussler Q.C. notes in the
Notley decision, it would be offensive to require a donation to the party of the Premier
from those who want to schedule a meeting with the Premier or a Cabinet Minister at the
Legislature. But the mere fact of any Member, including the Premier, taking part as a
member of their Party in a fundraising event organized by their Party does not, without
more, provide any basis for an allegation of breach of the COI Act. In particular the
question of level of donations, or participation of the party leaders, or reporting rules, is,
with respect, not a question for the Conflict of Interest Office but rather one for the
Legislature.
[39] The Notley decision (Notley) cited by counsel for the Premier refers to a very recent
opinion (March 14, 2016) issued by the Ethics Commissioner of Alberta7. In that opinion, one of
the issues Commissioner Trussler considered was whether Premier Notley would have been in
violation of the Alberta Conflicts of Interest Act by attending a proposed invitation only $1,000 a
person fundraiser as an add-on to a publicly announced $250 a person fundraiser.
[40] Mr. Eby suggested that the facts in Notley are not similar to the present case except that
both individuals are Premiers, and both sets of facts involve fundraisers. He described the
subject matter of the Notley complaint as allegations involving the Premiers attendance at a
fundraiser in Ontario for the Ontario NDPs direct benefit. This is true, but this characterization
of the complaint is not entirely accurate. The question of the Premiers participation in a
fundraising event in Ontario did indeed form one set of allegations brought against the Premier.

http://ethicscommissioner.ab.ca/media/1564/march-14-2016-allegations-involving-premier-rachel-notley.pdf

15

For reference I include the exact wording of the other complaint, as cited in Commissioner
Trusslers opinion:
I am on record having concerns that the Premiers party organized a secret, invitation
only, $1,000 a person fundraiser as an add-on to a publicly announced $250 a person
fundraiser. The Premiers office told members of the Alberta media that your office had
cleared this event. I would seek clarification. It seems to me that a $1,000 a person
invitation only event is exactly the type of access selling event that the former
Commissioner Don Hamilton took a dim view of in his report of May 11th 2007. In
particular, the fact that this event was unadvertised and only available to potential
contributors by special invitation makes it more unseemly, in that it appears that special
non-public access to the Premier can be purchased for $1,000. Such an activity damages
the integrity and impartiality of the Premiers office (at p. 1)
[41] The nature of the concerns expressed above is substantially similar to those raised by Mr.
Eby and Mr. Conacher and in my view Notley is directly on point. Commissioner Trussler
emphasized that the prohibition in the Conflicts of Interest Act with respect to the Premier is that
she cannot receive anything that furthers her private interest. She concluded that as the Premier
would not benefit personally from the fundraiser, she would not in any way be in breach of the
Alberta Act. Although the Alberta Act does not have an equivalent provision prohibiting
apparent conflicts of interest, the threshold question of what constitutes a private interest is
identical.
[42] In relation to exclusive fundraising events, Commissioner Trussler commented:
Much is said about small intimate fundraisers where the Premier and Cabinet Ministers
are present. The usual complaint is that access to the Premier or Ministers is being sold.
The issue of selling access to the Premier or other ranking politicians has been the subject
of considerable discussion both academically and in the media. Clearly if a fee is
charged that goes personally to a premier or a cabinet minister for access then the
Conflicts of Interest Act has been breached. It would also be offensive to require a
donation to the party of the Premier from those who want to schedule a meeting with the
Premier or a Cabinet Minister at the Legislature.
However, when it comes to general fundraising events by a political party, the complaint
of selling access is not appropriate.
.

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There is also nothing [in the Act] that states that a partys function cannot be advertised
as an evening with the Premier or the Leader of the Opposition or the leader of a named
political party.
This complaint raises the spectre that opposition parties are allowed to have fundraisers
with their leaders and portfolio critics in attendance but the party in power is not allowed
to hold such events. Clearly, such an unlevel playing field is neither fair nor appropriate.
If the party in power is not allowed to have a fundraiser with the Premier in attendance
then all other political parties should face the same restrictions on their leaders. (at p. 5-6)
[43] While decisions from other jurisdictions are not binding on me in any way, they are highly
instructive and the reasoning set out in Notley is persuasive.

V.

ANALYSIS

a. Is the Premiers private interest advanced by participating in exclusive

fundraising events for the BC Liberal Party?

[44] The specific facts that led Commissioner Hughes to conclude that Blencoe was in an
apparent conflict of interest vary substantially from those in the present case. Most significantly,
all of the funds raised at the events in question accrue to the BC Liberal Party, and not to the
Premiers campaign specifically.

[45] Commissioner Hughes addressed this vital distinction in the Harcourt opinion. I agree with
his expressed view that as a general rule, campaign contributions directed to the Party do not
give rise to a private interest under the Act, and therefore do not raise conflict or apparent
conflict of interest concerns. Whether a donation directed to the Party might ever give rise to a
private interest is a hypothetical question and I am not prepared to speculate. Based on the
circumstances presented in this case, I am not prepared to depart from the principle in Harcourt
articulated above.

[46] While it is likely that some portion of the funds raised at the events in question may be used
to promote the election prospects of the Premier and others representing the Liberal Party, this is
a general, political interest. Such a wide political benefit is not to be regarded as synonymous
with a personal benefit. It is too remote and speculative to be considered a private interest for
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the purposes of the Act. For a private interest to exist, there must be a direct and personal benefit
accruing to the Member, rather than an indirect and political one.
[47] Mr. Eby argues that the Premier is personally financially dependent to some extent on
these large private donations coming from these private parties. In particular, Mr. Eby
identified the receipt of a Premiers Allowance from the BC Liberal party as a direct and
personal benefit which therefore constitutes a private interest. However, this benefit is paid to
the Premier by the Party out of its general funds. Receipt of the allowance is not dependent upon
nor attributable to any one donor or group of donors. As noted earlier, Mr. Eby concedes that the
allowance cannot properly be described as a commission, nor are donors able to direct funds to
the Premier.

[48] To be considered an apparent conflict of interest, a reasonable person would have to

conclude that the Premiers ability to carry out an official duty or function must be impaired by
her receipt of the Leadership Allowance, which the Premier would receive from the Party
regardless of who is in attendance at a particular fundraising event or how much they donate to
the Party.

[49] The objective test set out in sub-section 2(2) is as follows:

2(2) For the purposes of this Act, a member has an apparent conflict of interest if there is
a reasonable perception, which a reasonably well informed person could properly have,
that the members ability to exercise an official power or perform an official duty or
function must have been affected by his or her private interest.
[50] In a nutshell, the mischief section 2 seeks to avoid is a quid pro quo situation; i.e. to
prevent Members from using public office to return a favour to someone who has given them a
private benefit, or appear to be doing so. The link between the multiple individual donations to
the Party and the payment of the Allowance to the Premier out of aggregated Party funds, is in
my view, far too diffuse and indirect to establish a private interest in relation to each individual
donor. Based on the circumstances under consideration in this request, receipt of the Premiers
Allowance does not constitute a breach of the Act.

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b. Limits on political fundraising activities

[51] As part of his request, Mr. Eby urged me to engage in a line-drawing exercise and set out
the parameters for acceptable and non-acceptable fundraising limits. He suggested that a
Premiers official acts and duties are broader, and therefore more subject to potential restrictions
under the Act, than is the case for party leaders not in power.

[52] The point is taken that those Members of the governing party have more direct influence on
the outcome of government decisions. However, the rules set out in the Act apply equally to all
Members. Opposition Members are also subject to the provisions of the Act with equal force.
Particularly in the lead up to an election, presumably the Leader of the Opposition and
Opposition Members are hopeful that their party will gain power. In my view there is no
difference between the governing party and the opposition party hosting exclusive fundraising
events. The Leader of the Opposition could very well be the Premier-in-waiting. As noted by
counsel for the Premier, according to media reports the BC NDP has hosted similar exclusive
fundraising events and intends to continue this practice unless election financing laws are
changed or until the BC Liberal Party ceases such activity.8

[53] Mr. Eby discussed at length the special powers of the Premier, for example to set the
agenda for Cabinet. The powers that Mr. Eby described are indeed those exercised by the
Premier in a parliamentary democracy. It is the prerogative of the government to exercise those
powers in order to carry out the governments agenda. He stated that:
the official powers this complaint is concerned with are the Premiers powers in relation
to the executive committee of the Cabinet, her power to dominate the administrative
machinery, her power to act as the guiding force, coordinator and arbitrator of the
exercise of the executive decision-making process in a manner favourable to the interests
of her political donors.

For example, http://www.theglobeandmail.com/news/british-columbia/christy-clark-defends-position-onprivate-political-fundraisers/article29548657/

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[54] What Mr. Eby describes is patronage. Commissioner Hughes considered the issue of
patronage and the role of this Office in Harcourt (at p. 27-28):
Under the Act and particularly section 2 my concern is with determining whether a
Member has a conflict of interest or an apparent conflict of interest. It is neither express
nor implicit in those sections that I am to act as a watchdog on patronage and thus it is
generally not my duty to monitor whether government contracts are awarded on the basis
of party affiliation. It becomes my concern however if a government decision, in which a
Member has had a role to play, is made or reasonably perceived to have been made after
a personal benefit amounting to a private interest has conferred upon the Member by
someone who stands to gain from the decision. This will amount to either a conflict or an
apparent conflict of interest.
Some confusion respecting the relationship between patronage and conflict of interest
may arise when campaign contributions of various kinds are in issue. Where such
campaign contributions are for the direct and particular benefit of the Member and the
Member awards a contract to the contributor, that can, in some circumstances, give rise to
an apparent conflict of interest. That might also involve or be described as patronage.
Where, however, the campaign contributions are for the Party and not for the direct and
particular benefit of the Member then any subsequent contract awarded by the Member or
any other government official to the contributor may raise an issue of patronage but it
does not raise an issue of conflict or apparent conflict of interest. As such it is not my
concern under the Act. (emphasis added).

[55] Mr. Eby posited that it is well established in law and in the jurisprudence that the Act both
calls on your office to act preemptively, even before a member has conducted an official duty or
used an official power to benefit a third party who advanced his or her private interest. You
must do so even in the situation of a reasonably perceived conflict. Mr. Eby cited Blencoe to
support his assertion that I need not wait for the Premier to act to benefit her benefactors before
[I] intervene.
[56] In Blencoe, the Commissioners finding was that if the Minister made a decision that
directly benefited individuals who had recently provided personal campaign assistance, it would
appear that his ability to make that decision would be influenced by the assistance he had
received. The circumstances allowed the Commissioner to advise the Minister that the specific
official action contemplated should not be taken in order to avoid an apparent conflict of interest.

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The scope of the Commissioner Hughes pronouncement in that case was vastly different than
scenario proposed by Mr. Eby.

[57] Essentially what Mr. Eby is asking me to do is draw an arbitrary line between acceptable
fundraising events and non-acceptable exclusive events that would apply on a retroactive
basis; demand the attendance list for these events (going how far back?); investigate the
business interests of each of the donors; determine what actual or potential official dealings all of
those donors have or may have with the government at some point in the future; monitor all
decision of the executive council that might affect those interests; and intervene before any
action is taken that might affect any of those interests. His position is that only the Premier, due
to her special executive powers, should be subject to such oversight.

[58] As everyone knows, a provincial general election will be held in May 2017, and
presumably the Opposition is hoping to form government. The Leader of the Opposition, as
noted previously (and not disputed by Mr. Eby) engages in similar exclusive events as the
Premier. Given that one year from now, the Leader of the Opposition may very well be the
Premier and Opposition Members who hold critic portfolios may be appointed to ministerial
positions, logically the same restrictions and monitoring ought to apply to Opposition
fundraising efforts to prevent whichever party is in power from exercising the executive
decision-making process in a manner favourable to the interests of [their] political donors.

[59] Such a proposal not only stretches the bounds of my authority as set out in the Act, it
contorts my role out of all recognition. I do not have the jurisdiction to freelance in such a
manner.

[60] The first point to note is that the Election Act does not limit the amount of money, property
or services that an individual or organization can contribute. Registered political parties,
registered constituency associations, candidates and leadership contestants must record all of the
contributions they receive. They must identify the contributors of over $250 in a single year,

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election campaign or leadership contest on their financing reports.9 Other jurisdictions in

Canada have different rules on campaign donation limits and reporting requirements.
[61] I concur with Commissioner Trusslers comments on the question of the Commissioners
role in setting parameters for political fundraisers:
As I indicated, most people have some tolerance for these events. I suspect no one would
have any problem with an event that cost $250 a ticket where 400 people attended.
Likewise an event that cost $500 for 250 would not cause any problem. But what about
an event for 100 people that cost $1,000 or even an event for 50 people that cost $5,000?
Is there a limit to what can be charged? There are people in this province that cannot
afford even $250 for a ticket let alone $1,000. Does that make an event exclusive?
I expect that everyone has a view as to what should be allowed. Who is to draw the line?
Should it be at the point where the medias sensibilities are offended or those of other
political parties? Should it be the general view of the electorate? And how is that to be
ascertained? I certainly have not been given the legislative authority to do so. (p 4)
[62] The second point is that I agree with Commissioner Hughes pronouncement that it is not
the role of this Office to act as a watchdog on patronage. It is neither appropriate nor indeed
within my capacity or authority to monitor what government decisions may be upcoming and
speculate as to whether there may be a potential real or apparent conflict of interest arising for
the Premier (or for any Member for that matter) based on party fundraising activities.

[63] It is prudent for Members to be aware of significant contributions to their personal

campaigns, as it may assist the Member in avoiding a potential conflict of interest situation from
arising. However, Party funding is a different issue.

[64] Should a situation arise, as in Blencoe, where the Premier receives a campaign contribution
for her direct and particular benefit, and she is subsequently called upon to perform an official
duty or function that might benefit the donor, a private interest could manifest. If that were to
occur, the recusal process in the Act provides the appropriate mechanism to avoid an actual or
apparent conflict of interest from occurring.

See Guide to the Election Act, Elections BC website at http://www.elections.bc.ca/docs/guidebooks/855GuideToTheElectionAct.pdf

22

c. Did the Premier receive an illegal gift?

[65] Section 7 of the Act prohibits Members from accepting a fee, gift or personal benefit
connected directly or indirectly with the performance of his or her duties of office, unless such
gift or personal benefit is received as an incident of protocol or social obligations that normally
accompany the responsibilities of office. If a Member does accept a gift or personal benefit in
appropriate circumstances, it must be declared if its value exceeds $250. This information is
disclosed on the Members public disclosure statement. For example, Members may receive a
thank you gift or complimentary hospitality when they attend an event in which they are
appearing in their official capacity.

[66] Whether or not a Member participates directly or indirectly in fundraising activities for
their party, the donated money is never in the Members possession or under their control. The
funds raised at exclusive events are donated to the BC Liberal Party and are not accessible for
the Premiers personal use. Contributions to Members Parties or campaigns are properly
reported to Elections BC in accordance with the Election Act.
[67] What, then, is the personal benefit that could be subject to section 7 disclosure? As noted
above, there may be a general, political benefit that accrues to the Premier by bolstering the
financial capacity of her Party. However, something more direct and tangible is required to be
considered a personal benefit i.e. something that is capable of being reported and disclosed. In
my view it is inconsistent with the intent and purpose of section 7 to interpret personal benefit
as encompassing a political benefit, whether direct or indirect.

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VI.

SUMMARY

[68] The threshold question that I must answer is whether the Premiers private interest was
engaged at any point by her participation in the impugned fundraising events, or whether she
received an inappropriate gift or personal benefit.

]69] Campaign donations and other assistance directed toward a specific candidate may, in some
circumstances, amount to a private interest. There may as in the Blencoe case be special or
cumulative circumstances in which receipt of a campaign contribution may, when received in
conjunction with other favours received, place a Member in a conflict of interest position. As
campaign contributions to the Party do not accrue to the direct and particular benefit of the
member, it is rare that that a donation to the Party will result in a private interest being
established for the purposes of the Act. There are no circumstances presented here that would
cause me to depart from this general principle as articulated in Harcourt. Funds raised at the
events in question were made to the BC Liberal Party. Improving the Partys financial standing
overall no doubt assists the Premier, as Leader of her Party, in the furtherance of her political
aspirations and the goals of the Party. However, any such benefit the Premier might derive from
the donations is of an indirect, general and political nature, rather than of a direct, particular and
personal nature.
[70] Nor am I able to conclude that the Leaders Allowance the Premier receives from the Party
is even remotely sufficient to create a private interest in the context of section 2. While it is a
financial benefit paid directly to the Premier, it is paid by the Party from general funds and is not
attributable to any one donor or group of donors. Neither can such donations made to the Party
be considered a gift or personal benefit for the purposes of section 7.

[71] Political fundraising is a legal activity that is governed by the Election Act. Whether the
rules surrounding the limits on ticket prices to fundraising events, the advertising of such events,
and the disclosure of attendees should be changed is a matter worthy of public debate. Indeed, it
is an issue that has captured the attention of the public nationally and robust discussion is taking
place throughout the country.
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[72] I share the view of my colleague in Alberta that it is not appropriate for me, nor within my
purview, to set parameters for the scope and scale of party fundraising events. Ultimately those
decisions must be made by the Legislature.

VII.

CONCLUSION

[73] For the reasons outlined herein, it is my opinion that the Premier was not in an apparent
conflict of interest as alleged by Mr. David Eby, nor in receipt of a gift or personal benefit as
alleged by Mr. Duff Conacher, by virtue of participating in exclusive fundraising events for the
BC Liberal Party or by receiving a Leaders Allowance from the BC Liberal Party.

Dated this 4th day of May, 2016

In the City of Victoria, British Columbia.

____________________
Paul D.K. Fraser, Q.C.
Conflict of Interest Commissioner

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