Crossing the Floor, Conflict of Interest and the Parliament of Canada Act
Gussow, David, Canadian Parliamentary Review
On March 20, 2006 the Ethics Commissioner of the House of Commons issued a report on an allegation that Prime Minister Stephen Harper contravened the rules of conduct set out in the Conflict of Interest Code for Members of the House of Commons by offering an inducement to David Emerson, the newly re-elected Liberal member of Parliament for Vancouver-Kingsway, to join the Cabinet of the new Conservative government. His conclusion was that neither Mr. Harper nor Mr. Emerson contravened any of the specific sections of the Members' Code. And he accepted Mr. Emerson's claim that accepting Mr. Harper's offer seemed, at least to him, a way to better serve his city, province and country. However the Ethics Commissioner stated that "the discontent expressed by Canadians on this matter cannot be attributed merely to the machinations of partisan politics. Fairly or unfairly, this particular instance has given many citizens a sense that their vote--the cornerstone of our democratic system--was somehow devalued, if not betrayed. Relative to the Office of the Ethics Commissioner, this disquiet is reflected in the gap between the values underlying the principles of the Members' Code and the detailed conflict of interest rules within the Code itself. The gap can only be addressed through rigorous political debate and the development, through the political process, of the appropriate policies to address it." This topic will certainly be an issue of debate in the 39th Parliament. The present article outlines how our perspective on what constitutes a conflict of interest has changed over the years, particularly insofar as accepting a position in the cabinet is concerned. It offers some ideas about how to eliminate the possibility of similar situations in the future.
One of the topical questions at the moment is whether it is a conflict of interest for a Member of Parliament to cross the floor and become a cabinet minister. The quick answer as far as the Parliament of Canada Act is concerned is that it is not. The Act specifically provides an exemption for all cabinet ministers as set out in sections 32, 33 and 35 as follows:
Division B: Conflict of Interest
32. (1) Except as specially provided in this Division ... no person accepting or holding any office, commission or employment, permanent or temporary, in the service of the Government of Canada, at the nomination of the Crown or at the nomination of any of the officers of the Government of Canada, to which any salary, fee, wages, allowance emolument or profit of any kind is attached ... is eligible to be a member of the House of Commons or shall sit or vote therein.
33. (2) Nothing in this Division renders ineligible to be a member of the House of Commons, or disqualifies from sitting or voting therein, any member of the Queen's Privy Council for Canada by reason only that the member ... is a Minister ... and receives a salary in respect of that position...if the member is elected while holding that ... position or is, at the date when nominated by the Crown for that ... position, a member of the House of Commons ...
35. If any member of the House of Commons accepts any office or commission that, by virtue of this Division, renders a person incapable of being elected to, or of sitting or voting in, the House of Commons, the seat of the member is vacated and the member's election becomes void."
As one can see the crucial words that are emphasized above provide all members of the cabinet, including the prime minister, with a blanket exemption.
What is not generally known is that for nearly half of the time after Confederation whenever there was a change in the political party forming the government every cabinet minister with a salary, including the prime minister, to avoid what is today considered a conflict of interest, vacated their seats in the House of Commons and ran in a by-election (1).
Only when the member was re-elected in a by-election was he allowed to hold the paid position of a cabinet minister at the same time as being a member of the House of Commons. …