BURST
As accusations fly that a B.C. Conservative MLA was offered a reward to resign so leader Kerry-Lynne Findlay could seek a seat in the legislature, one legal expert cautions there is a high threshold to prove any criminality.
Joven Narwal, a Vancouver lawyer with expertise in criminal defence and regulatory litigation, said the section of the Criminal Code that deals with situations like this does not generally prohibit political horse-trading.
“Negotiation, accommodation, and even a member’s decision to step aside so a leader can seek a seat are ordinary incidents of political life that are not criminalized,” said Narwal, an adjunct professor at UBC’s Allard School of Law.
“What the offence prohibits is narrow and transactional and captures more specifically, forms of purchase and sale of a public office,” he said.
The political uproar is taking place as four MLAs left the party this week , citing Findlay’s leadership.
Delta South MLA Ian Paton, one of those who left, has said he had been offered an agricultural adviser role by Findlay’s chief of staff, Chris Delaney, that would pay him the same amount he makes as an MLA, $122,043, if he resigned his seat to make room for her to get a seat in the legislature.
Findlay denied Paton’s allegations.
Another B.C. Conservative, Prince George-Valemount MLA Rosalyn Bird, said Paton’s allegations contributed to her decision to leave the party.
The RCMP would not say whether they have received a complaint or whether they are investigating.
Paton said Friday he has not made a complaint to police or another agency or regulator.
Narwal said that to prove criminality, a prosecutor would need to prove beyond a reasonable doubt that there was a quid pro quo, that something was provided in exchange for something, and disprove any innocent explanations.
For instance, he said, an office holder may have decided, independently and for their own reasons, that it was time to leave public life.
And conversations about a future contribution may have begun after the decision was made, he added.
Or a party may simply have wished to keep an experienced and valued colleague involved and an appointment may have followed quickly because the need was immediate, not because it was promised.
“The issue would turn on the communications, meaning what was said, by whom, in what sequence, and on what conditions,” said Narwal. “A benefit that follows a resignation is not the same as a benefit promised for one, and the Crown (prosecutor) would need to meet a very high threshold of proof.”
The MLA who stepped down last week so Findlay could seek a seat in the legislature, Reann Gasper of Abbotsford-Mission, was hired as the party’s caucus deputy chief of staff two days later.
In an audio clip released anonymously of a B.C. Conservative caucus meeting in early July, Findlay can be heard saying that if an MLA was willing to step aside, she could give them a role as a senior adviser in their same portfolio, so that they remain involved.
This week, on social media, Findlay said the person who posted the audio made the “preposterous” suggestion that these comments may constitute a crime. “Any fair-minded person listening to the recording will immediately realize that this is not a good faith allegation of wrongdoing,” said Findlay.
There is a previous example in B.C. of an MLA stepping down to give a leader a chance to gain a seat in the legislature when they had formed government, and that former MLA being given a newly created government job.
In 2013, when Westside-Kelowna MLA Ben Stewart stepped down from his seat for B.C. Liberal Premier Christy Clark, he was appointed as B.C.’s special representative in Asia , a $150,000 a year job he held for three years. After Stewart left the post, it was not filled again. Stewart ran again and was elected in 2018 and 2020.
Prosecutions for these types of allegations are rare.
An online search of Canadian court judgments dating back to 2001 shows no cases citing the section of the Criminal Code that covers these cases.
In a 2017 case in the Ontario courts , which was prosecuted under the province’s Election Act and not the Criminal Code, two political aides were charged for allegedly inducing a local candidate to step aside in favour of a high-profile recruit.
The judge found the prosecution failed to present sufficient evidence of a crime.
In response to Postmedia questions, Elections B.C. said this week that the province’s Election Act does not regulate the conduct of elected officials, such as their decision to resign their seat. As a result, it does not investigate the conduct of elected officials as that responsibility is outside of its jurisdiction, said the agency.