'Gap in the law': PC critic suggests review of conflict law

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'A little Band-Aid': Residents want moratorium on Shediac Bay development

'A little Band-Aid': Residents want moratorium on Shediac Bay development

A Progressive Conservative MLA says it may be time to review the conflict-of-interest law after the first recommendation by new conflict commissioner Alexandre Deschênes.

Deschênes recommended to Health Minister Victor Boudreau that he recuse himself from dealing with the Parlee Beach issue because perceptions of a conflict of interest were "unavoidable."

But Deschênes told Boudreau while that may be the perception, the conflict law "seems to permit your participation" in decisions about Parlee Beach, including a potential moratorium on development in the area.

Private vs. public interest

Boudreau owns a 20 per cent investment in a proposed 750-site campground near the beach that would be halted if the Gallant government opts for a moratorium.

Section 4 of New Brunswick's Members' Conflict of Interest Act says an elected member should not "make a decision or participating in making a decision" that could "further the member's private interest."

But the act says the definition of a private interest does not include "an interest in a matter that is of general public application" or "that affects a person as one of a broad class of persons."

Deschênes relied on that phrasing in his March 2 letter to Boudreau, writing that "one could argue" that Boudreau's decisions apply to the general public or affect people in a broad class of persons "and consequently don't constitute a 'private interest' under section four."

In effect, Deschênes is suggesting Boudreau wouldn't be in a conflict about the moratorium because the moratorium would not affect only his campground business but also other people and their businesses.

Gap in the law

PC health critic Brian Macdonald says Deschênes, a retired justice of the New Brunswick Court of Appeal, "is obliged to follow the law that's laid down.

"This may be a gap in the law," Macdonald said. "If there's a gap in the law we should fix that gap in the law."

Deschênes turned down a request for an interview on his interpretation of the law. His assistant said as a former judge, he believes he shouldn't comment on his decisions.

In an interview with CBC News this week, Boudreau said he asked Premier Brian Gallant to recuse him because of perception, but repeatedly emphasized Deschênes's finding that he wasn't actually in a conflict.

"No decision that I would take if I were take one as minister of health would affect only one project, whether positively or negatively," Boudreau said.

"When you're a minister and you're taking decisions on behalf of the department, it's for the greater good. It's for the masses, if you will. It affects more than just a particular project or a particular initiative.

"That's why the conflict commissioner doesn't feel there is a reason to worry about conflict."

Federal law

Even though Deschênes didn't think Boudreau was in a conflict, he recommended the recusal to avoid the perception of a conflict.

The conflict of interest code for federal MPs contains a similar definition of "private interest."

The code says if the matter "is of general application" or affects the MP "as one of a broad class of the public," it's not a private interest.

That code also says MPs should arrange their private affairs to prevent real or perceived conflicts, and if any conflict does come up, it should be resolved "In a way that protects the public interest."