Issue No. 1

It is my opinion and advice on the broad question posed in our terms of reference, all elected or appointed public officials effected by the statutes should be treated in the same manner. On the second issue, it is my advice that it would be inappropriate to establish any distinction for gays and lesbians. If they wish to seek public office they should accept the fact that they, along with others who are elected, may not be able to enjoy the same degree of privacy enjoyed by those who are not in public life.

I came to these conclusions in two ways. The first is the position was espoused by those with whom we spoke. Their statements and positions make good sense to me. The second is I can't think of any way in which gays and lesbians could receive a benefit or advantage that others would not have, without discriminating against others.

Issue No. 2

When "common-law partner" appears in a statute, there should be a definition of the term in Section 1, where other definitions appear. I suggest the same wording I did when dealing with adoption.

Issue No. 3

There is a great deal of similarity between the three statutes that deal with disclosures; in fact they are almost identical. They all require elected officials to file a statement of assets with the Clerk or Secretary-Treasurer and to keep it current. Each statute makes the statements confidential.

The conflict statutes refer to a "dependant" of an elected person. A definition of that term appears in Section 1 of the Legislative Assembly and Executive Council Conflict of Interest Act and the Municipal Council Conflict of Interest Act and in Section 36 of the Public Schools Act. Using the Legislative Assembly and Executive Council Conflict of Interest Act as an example,

Even though the definition of "spouse" need not be disturbed, same-sex common-law partners must be treated in the same way as opposite-sex partners. A partner of the same sex is not likely to be represented as a spouse.

The existing provisions limit their application to a spouse or a partner of the opposite sex and would not withstand a Charter challenge as they discriminate between same and opposite-sex partners. When applied to the operative sections of the Act, the definition requires that the assets of a person held out to be a wife or husband of the member be listed and declared but does not require any disclosure of the assets of a same-sex partner.

This is the opposite of the situation seen in the Adoption Act that permits opposite-sex couples to adopt but denies that opportunity to same-sex couples. It is discriminatory nevertheless as it makes a distinction based on sex or sexual preference.

Issue No. 4

Section 10 of the Municipal Council Conflict of Interest Act and Section 39.3(4)(h)(i) of the Public Schools Act refer to gifts from a "family" member. There are also a number of other statutes that deal with property and use the term "family". Some define the term but most do not and my recollection is that not all statutes use the same definition. When the government is considering the use of the term, I think it important to have "family" defined so there will be no doubt who is intended to be included. I suggest the same definition I developed when dealing with property be used.

Issue No. 5

Each of the Acts makes provision for how an elected person is to react if a matter arises during a debate in the House, in committee or in cabinet, that might result in some benefit or advantage accruing to a member, a dependent or another person or corporation with whom the member is associated. Sections 4(1), 5(1) and 38(1) of the three statutes deal with the point. The Legislative Assembly and Executive Council Conflict of Interest Act provides:

Subsection (c) is the provision that is no longer being applied or enforced. If it is no longer applied and if the reactions we heard are persuasive, government might wish to amend the section.

I should mention that the provision is much more specific than those who spoke to us suggested. The requirement is not merely that the member disclose the general nature of his conflict but "disclose the general nature of the direct or indirect pecuniary interest or liability."

There are two options available to government; amend the requirement, or see that it is enforced.

Issue No. 6

In addition to the statutes that relate to the responsibilities of those elected to public office, there are a number of others that require a member of a board or committee that makes loans, grants, benefits or administers funds on behalf of a government created agency to avoid any conflict of interest. The provisions are intended to protect the public interest by ensuring those in positions of responsibility do not obtain any benefit for themselves or for members of their family.

For example, section 98(4) of the City of Winnipeg Act, speaks of the use of a candidate's own funds "or those of the candidate's spouse." To impose the same obligation upon a person living in a common-law relationship, the provision should be amended to add "or common-law partner" after the word "spouse".

Personnel within the Ministry of Justice have already reviewed a number of these provisions and have identified particular sections requiring amendment. It is not necessary for me to go over each section and recommend a specific amendment. Where sections refer to the "spouse" of member, the addition of "or common-law partner" will likely cure the problem. Additional re-wordings may be advisable as well.

When suggesting the definition of "common-law partner" I intentionally exclude the one or three-year limitations that have been used in the amendments to some property-related statutes in Bill 41. Those waiting periods should definitely not apply in the conflict of interest statutes. If a person is party to a common-law partnership at the time of election he should immediately be subject to the disclosure requirements.

I deal further with the constitutionality of the different waiting periods in Part III.

These recommendations are intended to enable people in every form of marital or common-law relationship to be treated alike. They are also intended to protect the legislation from a Charter challenge.

Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. - Final Report Part II) Conflict and Protection of the Public Interest Advice and Recommendations
Part II) Consultations	Part III) Introduction
Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. Volume 1 Volume 2 (proposed Statute Amendments) Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. Final Report