Legislative Office

Vancouver-Point Grey
Room 201, Parliament Buildings
Victoria, BC V8V 1X4
Phone (250) 953-4736
Fax (604) 660-0862
Community Office:
2909 West Broadway
Vancouver, BC V6K 2G6
Phone (604) 660-1297
Fax (250) 387-4680

David Eby, MLA
(Vancouver-Point Grey)

April 1, 2016
Conflict of Interest Commissioner for British Columbia
Commissioner Paul Fraser, Q.C.
VIA FAX: (250) 356-6580

Dear Commissioner Fraser:
Re: Complaint under Section 19(1) of the Members’ Conflict of Interest Act concerning the Hon.
Christy Clark
I write to you today in my role as the Member of the Legislative Assembly of BC for Vancouver Point
Grey and a Member of the BC Legislative Assembly of British Columbia to file a complaint under the
Members’ Conflict of Interest Act pursuant to section 19(1) and to request that you conduct an inquiry
under section 21.
Allegations
In the Globe and Mail on May 28, 2016, Gary Mason, a well-known and respected reporter for that
paper, reported the following allegations about the Member for Westside-Kelowna, and the Premier of
British Columbia, Christy Clark. I record the key allegations from the article in full here for your review1:
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.
[…]

1

While I include these notations from Mr. Mason’s article for your reference, I am mindful of the caution about
reliance on media reports in Helmut Giesbrecht [http://www.coibc.ca/down/opinion/opinion_dejong_1999.pdf]
for complaints under the Act. I am informed and have personal knowledge of some of these matters as described
in the media reports, and I file these allegations with you with the knowledge that none of the parties cited or
quoted by Mr. Mason disputes that these events took place, or that the amounts and numbers and descriptions of
guests are accurate.

That has allowed the Liberals to retire their debt from the last election – estimated
to be more than $3-million – and begin building a formidable war chest for next
year’s campaign.
[…]
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.

A private interest need not be direct, personal or financial, and includes a private interest reasonably
“perceived” to be a conflict with an official duty
The BC Conflict of Interest Act defines, in section 2, a conflict of interest as including any performance of
an office’s duty when there would be an opportunity for the Member to advance his or her private
interest. An actual conflict need not arise, section 2(1) deems it sufficient that the conflict exists where a
reasonably well informed person would reasonably perceive that:
[The] member's ability to exercise an official power or perform an official duty or function
must have been affected by his or her private interest.
The mere fact that a member’s private interest is advanced by some activity is not sufficient for the Act
to be engaged. What the Act prohibits is a Member from acting in his or her official capacity if the
Member’s personal interest is advanced somehow by doing so.
In Harcourt, the Commissioner confirmed that the private interest of the member can be advanced well
before the impugned act or duty is performed.2 In the same case, the Commissioner found that the
interests of those in a “close and proximate” relationship with the Member can be considered the
member’s private interests as well.3
In summary, and relevant to these facts, a private interest of a Member caught by the Act need only be
reasonably perceived, not actual. The advancement of the Member’s interest need not take place at the
same time as the official duty prohibited by the Act, and the benefit need not be delivered directly to
the Member in order to be captured by the Act as a private interest of the Member.

2
3

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

Is a campaign contribution considered a “private interest” under the Act?
A Member’s private interest has long been considered to include interests that are not a direct financial
benefit to the member or his or her family. As stated in Blencoe by the Commissioner, “As I have said,
private interest is not limited to a pecuniary or economic advantage. It can include any real or tangible
benefit that inures to the personal benefit of the Member.”4
Important to this matter, the Commissioner in Blencoe goes on to make the following findings about
campaign donations:
It is to be emphasized, however, that a Member who has received a campaign
contribution, financial or otherwise, must not, at least in some circumstances,
discussed in more detail below, thereafter put him or herself in a position to
confer an advantage or a benefit on the person who made that contribution.
In Blencoe, the Commissioner found that $385 in contributions by an individual to Mr. Blencoe,
combined with the donor’s attendance at a strategy meeting and the donor personally endorsing the
candidate during an election, was sufficient to create a perception of conflict of interest that prohibited
Mr. Blencoe as Cabinet Minister under the Act from acting in relation to a particular development
decision that benefitted the donor.
In making that finding, the Commissioner listed an open set of factors that should be considered in
situations related to campaign donations and conflict:


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.

Further to the issue of campaign contributions, in the Harcourt decision the Commissioner discussed a
confidential opinion he had given to a Member concerning a campaign contribution the Commissioner
described as:
A single relatively minimal contribution made to a Member charged with exercising powers
under a particular statute, which powers might be exercised in favour of the person who made
the contribution.
In that situation, the Commissioner did not disclose the amount of the contribution, but did note that
the size of the contribution was key to his determination:
Further, for me to rule that your receipt of this modest contribution forever precludes you from
meeting your statutory obligations ... would not coincide with the views that I have expressed
about the importance of encouraging campaign contributions as an interest clothed with the

4

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

public interest. I appreciate that reaching the foregoing conclusion unavoidably involves me in
drawing lines … It will depend on all of the circumstances in each case.
In Application by Michael de Jong, the Commissioner held that the line drawing exercise required of the
Commissioner in campaign donation conflict allegations involved what he described as the
“accumulation of factors” from Blencoe that would tip the scales one direction or another, one of which
factors included not just the size of the donation, but that similar donations were given to other parties
at the same time.5

Are there special considerations in relation to political donations involving the activities of a Premier?
The role of the Premier is unique in the Parliamentary system, and so accordingly unique considerations
have been given to this role by Conflict Commissioners in BC.
In Harcourt, the Commissioner discussed the unique nature of the Premier’s role in both fundraising for
his or her political party as well as governance for the broader public, and the need to exercise caution
in finding a conflict related to a Premier’s fundraising activities. In that matter, the complainant alleged
that the Premier attending and speaking as keynote at an NDP party banquet with $40 tickets put the
Premier in a conflict of interest in relation to official acts involving any of the attendees at that event.
In deciding there was no conflict, the Commissioner drew a sharp distinction between donations to the
party and donations made to the Premier’s own constituency:
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.
As the leader of a political party in government, the Premier will address many people at paid party
fundraisers during the year – to find a conflict of interest for every donor in every situation would
indeed “hamstring the operation of government.”
Because both under BC law, and as a matter of common sense, it cannot be the case that a Premier as
the most powerful member of the executive committee is immune from a finding of conflict of interest
in relation to any and all fundraising activities for her party, Harcourt must stand for the proposition that
the campaign donation factors in relation to allegations concerning a Premier require a context that
means the donations rise significantly above a de minimus level.
BC’s Conflict Commissioners have noted that British Columbia has historically been unique in the
breadth and strength of our conflict legislation. However, other jurisdictions can provide some
assistance in determining when a political donation involving the Premier’s activities rises above the de
minimus level described in Harcourt.

5

http://www.coibc.ca/down/opinion/opinion_six_mile_ranch_1998.pdf

In Alberta, an investigation by their Ethics Commissioner into then Premier Stelmach drew a distinction
between a $5,000 by-invitation, private event which had been cancelled and a $500 reception that had
gone ahead as follows: “The $500/ticket receptions held in Calgary and Edmonton were not connected
to a ‘private’ reception where donors might have the ear of the Premier and his Ministers.”6
The $500 reception was deemed not to be a conflict under their provincial laws. The question of
whether or not the $5,000 private reception was a conflict was not determined beyond the Comissioner
noting that it was distinct and separate from the other event and would require additional
consideration. The facts in Stelmach and the distinction drawn by the Commissioner there between the
two events confirms the general tone of the BC decisions that the Blencoe factors apply to considering
the context of a Premier’s activities soliciting and receiving campaign donations just as they would for
any Members’ activities, except at a higher threshold given the unique aspects of the role.

Other policy considerations related to the Office of Premier
It is obvious that under B.C. law, the Premier of British Columbia is not permitted to sell access to her
office – she cannot demand a fee in exchange for a meeting. However, as leader of her political party,
the B.C. Liberals, she has a responsibility to fundraise for that party. Her “right” to fundraise under BC
law is restricted in many ways, by several different statutes, but fundraiser-in-Chief is a legal and
appropriate role for the leader of any political party under B.C.’s current election donation rules. As the
Commissioner wrote in Harcourt, campaign donations are complicated – they are a private interest
clothed in the public interest.
It is worth noting that under the Act, the implications of B.C.’s conflict law for the leader of the
governing party, the Premier, are significantly different than implications for the Leader of the Official
Opposition or another party leader that is not in government. Because the Act does not prohibit a
private interest, but does prohibit engaging in “official acts or duties” that carry the perception of
conflict with that private interest, the Act (perhaps incidentally but certainly in effect) carries a more
demanding set of obligations for the leader of the political party that holds power. By British Columbian
law and Parliamentary tradition a Premier’s official acts and duties are broader, and therefore more
subject to potential restriction under the Act, than is the case for party leaders not in power.

A line must be drawn: When is a fundraiser featuring the Premier an exercise in selling access?
As Commissioner, applying the factors first set out in Blencoe, I request that you engage in the “line
drawing” exercise set out by the jurisprudence and the law, which is a fact-driven process. Under BC’s
conflict of interest legislation, you have the power to apply a conflict of interest “sniff test”, described as
the opinion of a reasonable person reasonably informed of the facts about whether there is a conflict or
the reasonable perception of a conflict.
The questions are two: First, did the Premier, on these facts, cross the line between her proper
fundraising role into the territory of the improper conduct of selling access to the highest office in the

6

http://www.ethicscommissioner.ab.ca/media/1054/leadershipreport07.pdf

Province? Second, did the Premier, by accepting these large donations and having personal knowledge
of them and the interests of the donor, fetter herself from future decisions involving the interests of
these donors?
There is clearly a difference between an intimate, five figure entry fee, by-invitation only fundraising
function at a private home or in the back room of a reception hall with the Premier, and an event in a
public venue that is publicly advertised at a lower ticket price. I submit that the Premier has crossed that
line with these events and has put herself in a position where I believe she has already violated the
restrictions of B.C.’s Members’ Conflict of Interest Act, and further, that the law now requires she must
recuse herself from public decisions related to the donors who attended these events.
The factors in Blencoe for identifying a private interest and overlap with a public duty or responsibility
are satisfied as I outline below. Where information is missing, this context calls out for your office to
investigate and obtain further information.

Factor 1: The timing of the contribution relevant to the receipt of the public benefit
Mr. Rennie says that the attendees at these small, unpublicized gatherings in private homes and back
rooms were “leaders of the BC business community.” The B.C. Liberal Party has not disclosed the list of
who attended, and as a result, it is impossible without investigation to determine whether these
contributions are in close proximity to any decision made or anticipated to be made by the Premier, or
her executive council. I request that you undertake this investigation of who attended, and whether
upcoming or concurrent decisions by the Premier as part of her public office are in conflict.
Despite this missing information without an investigation, there is sufficient information offered for the
reasonably informed observer to conclude that the “leaders of the BC business community” would have
many and varied personal and institutional financial interests in multiple decisions made by the Premier
and her executive council, and that the likelihood of a potential conflict in the timing of these significant
contributions is high.
In addition to the prospective future benefit for these donors of a favourable intervention by the
Premier using her public office on a matter in which they have an interest, there is also an immediate
public benefit for these donors of a private audience with the Premier. Here, the connection between
the donation and the public benefit conferred of an audience with the Premier is instantaneous and
direct.
The power that legislation and Parliamentary tradition brings to anyone who holds the public office of
Premier makes that person’s time, and an audience with them, worth considerably more than an
audience with that individual would be if, for example, he or she were the leader of the Official
Opposition or a backbench government MLA. This value is created through the public office the Premier
holds, and this public benefit must not be used by the Premier to advance her private interest of raising
money for her own election prospects and those closely associated with her in the B.C. Liberal Party.

Factor 2: The significance of the contribution
The median household income in British Columbia is $74,150 before income taxes.7 Assuming a 30% tax
rate, the median after-tax income in British Columbia is $51,905. The donations at these small events is
anywhere from 20% to 40% of the median after-tax income of British Columbian households. In short, to
the reasonable person in British Columbia, this is a significant donation. Even an individual who earns
$100,000+ per year would find donations of this scale to be a significant part of their after-tax income.
According to a 2012 survey by Statistics Canada, the average British Columbian donated $543 annually
to charities including political organizations.8 The donations to attend the Premier’s private events are
between 18 and 36 times the average charitable/political donation by British Columbians. Mr. Rennie
declares an average fundraising of $1,250,000 per year for the BC Liberals through his activities. A single
donation of $20,000 for a private event reflects 1.6% of the Premier’s annual fundraising target. The
average British Columbian’s donation of $543, assuming it were all directed into a single political party,
would reflect .00043% of the Premier’s annual fundraising target.
These contributions are not just significant to the BC Liberal party. They are also significant to the
Premier as one of the events described was a $5,000 personal meet and greet held at an event in
Kelowna. If the contributions from this event directly benefitted the Premier’s constituency, that direct
financial benefit, as considered in Application by Michael de Jong as distinct from a general party
donation, increases the significance benefit experienced by the Premier for the purposes of the Act.
Whether direct to her constituency or not, these contributions are significant to the reasonable, well
informed person, and they rise well above the donations contemplated in other decisions involving the
conduct of Premiers for general party donations. They are not the contributions of a $40 banquet at
which the Premier is a keynote as in Harcourt. They are not even the $500 cocktail receptions discussed
in Stelmach. These donations range between ten and twenty times the Stelmach donations.

Factor 3: The motive for the donation and the subjective knowledge of the Premier
The Premier, on entering one of these private fundraisers, would reasonably be expected to have
personally known both the value of the donation of the funders and their identities and interests. For a
larger event like a banquet in Harcourt, or a cocktail reception as in Stelmach, it would be almost
impossible for a Minister or Premier to know everyone who is at a given event, and what that individual
donated in order to attend, or at the event itself. However, with a group of ten or fewer people with a
five figure entry price, only willful blindness would lead the Premier not to have personal knowledge of
the minimum size of any particular donation.
At an event this small, and given the clear intent of the event to offer exclusive access to the Premier, it
would be unlikely in the extreme for the Premier not to be introduced personally to each attendee at
the event and so would have had personal knowledge of each individual donor’s significant
contributions. More likely than an incidental introduction is the probability that the Premier’s
fundraising staff would have briefed her extensively about the attendees, their relevant interests
7
8

http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/famil108a-eng.htm
http://www.statcan.gc.ca/pub/11-008-x/2012001/article/11637-eng.pdf

including their financial or business interests, and areas of provincial policy that may be relevant to
those interests – if only to avoid embarrassment during the informal discussions that evening.
The motive for a private person’s donation made to attend these events will vary by each person who
donated and would be difficult for you to discern; however, in British Columbia law, the motive of the
donor for the purposes of conflict of interest is relevant whether it is a motive perceived by the
reasonably informed, reasonable observer in British Columbia (objective), as a motive that is actually
present in the individual donor (subjective).
To this point, in Stelmach, a participant who planned to attend the impugned private event with the
Premier at a $5,000 cover said his attendance at the event was motivated by his interest to “see who
else was in the room” and to “network” with other attendees. Despite those private and subjective
motives which the Commissioner did not question, the Commissioner found that the objective
perception of the public about the motive for such significant donations at a closed event with a secret
list of attendees is as follows:
Unfortunately, the lack of disclosure of donors’ names and the price tag attached
to some events leads to allegations of privileged access and questions of possible
rewards in exchange for donations.
In short, there is a perceived interest captured by the Act in the motive of the donor. In British Columbia
an official act and a private interest that lead to the “perception” of a conflict, not just an “actual”
conflict, is illegal.

Factor 4 and other factors: Is it a duty regularly performed for constituents? Other donations?
This factor is not relevant to any consideration under this complaint. My complaint concerns the
Premier’s duties and decision making power as Premier, not as MLA, a set of responsibilities and powers
distinct and unique that sets her apart from all other MLAs in the legislature. No MLAs regularly perform
the duties of Premier for their constituents except for the Premier.
From the jurisprudence, additional factors include whether or not similar donations were given to other
parties at the same time. That factor does not apply here as the donations were for attendance at onetime events held by the BC Liberal party.

Blencoe factors: A personal benefit for the Premier and a high likelihood of conflict with a public duty
Combining the Blencoe factors to determine context and whether a personal interest and a conflict with
a public duty are present:
1. These were significant donations solicited from a select group of people without wide
publication;
2. Made to the Premier’s political party with the personal knowledge of the Premier of both the
donation amount and the donor’s identity and interests;
3. From people with significant personal and institutional financial interests tied to decisions made
by the Premier in her public duties;

4. Benefitting her directly through distribution of the money by the BC Liberal Party to her
constituency association;
5. Benefitting her indirectly through distribution of the money by the BC Liberal party to her
closely proximate associates, party staff, and fellow BC Liberal MLAs and their constituency
associations;
6. Granting these individuals the direct personal and public benefit of an extended private meeting
with, as a result of Parliamentary tradition and law, the most powerful MLA in British Columbia;
and,
7. Granting these individuals the increased opportunity – if only perceived by a reasonably
informed member of the public – of a near-term direct financial benefit of a favourable decision
made on the donor’s behalf by the Premier in her role as Premier.

On the basis of these factors, I respectfully request that you investigate this matter immediately, that
you find the Premier has placed herself in conflict of interest, and that you prohibit the Premier from
deciding on matters that include the interests of those who attended at these events in order to prevent
further violations of the Act. Thank you in advance for your consideration.
Yours truly,

David Eby
MLA, Vancouver Point Grey