A story of breathless insouciance and sheer persistence
'Oh, what a tangled web we weave, when first we practise to deceive!' So wrote Sir Walter Scott two centuries ago in his epic English poem, Marmion: A Tale of Flodden Field. Writing in today's colloquial English, one would simply say, 'When lying liars lie about their lies.'
Both are fitting characterizations of the stunning ethics and conflict of interest report released this week by ethics commissioner Jeffrey Schnoor into the attempted breach of the caretaker convention by a defeated government after the 2023 Manitoba election. He found that former premier Heather Stefanson, deputy premier Cliff Cullen, and Jeff Wharton, minister of economic development, investment, and trade, attempted to approve an environmental licence for the controversial Sio Silica mine during the caretaker period, despite having no political authority or legitimacy to do so.
In doing so, Schnoor found that they had first, breached the caretaker convention which governs the behaviour of governments during and after an election, and second, in doing so, they had sought to 'further another person's private interests' — Sio Silica. An ethical and conflict of interest breach of a decisive and unprecedented nature.
MIKE DEAL / FREE PRESS
Former premier Heather Stefanson and some members of her government tried to push through a controversial mining permit — after the PCs were defeated in the last election, an investigation has found.
The caretaker convention is a bedrock political convention of Canada's system of responsible government and democracy. Simply put, an outgoing government cannot take decisions on any matters that are not routine, urgent, or administrative in nature only. Sio Silica's licence approval was anything but. It was anti-democratic in the extreme.
To read the report is to be struck by both the breathless insouciance and the sheer persistence of the main protagonists in their actions. They simply didn't give up. Despite saying to the Commissioner in testimony that they understood the caretaker convention, each of them sent written submissions to him insisting it actually didn't matter. Schnoor wasn't having any of it, writing of Stefanson: 'Her efforts to have the project licence issued during the transition period were themselves a breach of the caretaker convention.'
This was no shortage of attempts by the deputy premier to advance the Sio Silica licence through the bureaucracy during the election period from Sept. 5 to Oct. 3, 2023. A draft licence was in fact prepared and shared with the company.
These efforts accelerated following the PC government's loss during the transition period.
Not able to issue the licence themselves, or unwilling to shoulder that controversial responsibility, Cullen and Wharton sought to entwine officials in their machinations, from the clerk of the executive council to the deputy minister of environment, desiring they find a way to do so.
That 'way' was to concoct a scheme, led by Wharton in this instance, to get the defeated minister of environment, Kevin Klein, to issue it on his own authority, under Section 11.1 and 11.2 of the Environment Act, a never-before used power that allows the minister to issue a licence on his own. He refused, so they moved on to pressure Rochelle Squires, also defeated, to do so in a highly irregular move in her formal capacity as 'acting minister of environment,' under the Executive Council Act.
This spurious ploy would have required a just-defeated acting minister to act in place of a just-defeated minister who had refused to act on his own accord. A legal fig leaf to cover up an illegitimate act.
Unsurprisingly, each of the respondents sought to minimize their knowledge and actions throughout this sordid exercise. 'No harm, no foul' became their default excuse.
Since no licence was ever issued, they cannot retroactively be found to have done wrong. Schnoor disagreed, writing: 'A private interest does not actually have to be furthered; it is sufficient that there is an opportunity to do so.' He went on to call Stefanson's repeated dismissal of the caretaker convention as 'disheartening.'
That is an understatement. The former premier has evidently learned nothing from the whole affair, continuing to dissemble about her actions while dismissing the report and its findings. Her statement on the report says, 'I had no obligation to do so but reached out to the incoming government and fully considered their views before deciding on what to do,' Any actions she took, were 'to further and protect the public interest.'
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No obligation? This means she believed she could have issued the licence but deigned not to, not because of the caretaker convention but because out of some unknown principle known only unto her. How striving to ignore that same caretaker convention furthers and protects the public interest is breathtaking in its impertinence.
Out of politics now, Stefanson's primordial interest in her defence seemed to be how this would affect her future job prospects. This was revealed via a final representation from her legal counsel who wrote the commissioner, asserting: 'with respect to whether any of your potential findings would impact Ms. Stefanson's capacity to serve as a director of any publicly traded Canadian companies. He opined that they would not…'
Schnoor recommended stiff fines for each of Stefanson, Cullen, and Wharton. These are the first-ever such recommended by the ethics commissioner. Why, because it was Stefanson's predecessor as premier, Brian Pallister, who toughened up the Conflict of Interest Act in 2021 to allow for such fines.
Sir Walter Scott might call that poetic justice.
David McLaughlin is a former clerk of the executive council and cabinet secretary in the Manitoba government.
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