A revolution in Alberta
Consumer advisory: this column is about a sideshow to a sideshow. Namely, the Progressive Conservative party in the Alberta legislature. All the compelling action in Alberta politics these days is outside the assembly, as it normally is, but very occasionally something intriguing happens inside, too.
Shortly after the celebratory chimes of the New Year died down, a very unusual thing took place in Alberta: an ethics investigation into a provincial MLA led to a finding of guilt and a penalty. The impugned individual was Ric McIver, interim leader of the third- place PCs. In November, McIver had stood up in question period to ask about a price cap on consumer electricity proposed by Alberta’s New Democrat government. McIver complained that the cap would “limit investment and ... competition” and “make Alberta the worst place in Canada to generate power.”
Why, McIver asked Premier Rachel Notley, “are you doing everything in your power to run these companies, many of which are owned by taxpayers, out of business?”
Heather Sweet, an NDP backbencher and social worker from Edmonton, smelled a rat. She knew that McIver’s wife Christine owns a boutique electricity retailer in Calgary called Brighter Futures Energy Inc. Alberta’s deregulated electricity market has a lot of these small local companies — they are a bit like neighbourhood- level Internet service providers, often with some kind of green marketing angle — and Mrs. McIver’s fetches about $10,000 a year.
Sweet concluded that McIver had violated the Alberta Conflicts of Interest Act by seeking “to influence a decision to be made by or on behalf of the Crown to further a private interest of the Member.” She made a complaint to the provincial Ethics Commissioner, Marguerite Trussler. Trussler agreed there was a problem, fined McIver $ 500, and suggested politely that in the future he should sit down and shut his yap in the Assembly about electricity regulation.
This is probably a good idea, and when the ruling was handed down, McIver agreed. “My actions in the legislative assembly were not intended to protect my wife’s business,” he said, but he admitted “I was in violation of the Act” and said he would follow Trussler’s advice.
This news item sat quietly in its gift-wrapped state of apparent completeness until Thursday. But in the meantime, someone had smelled another, quite different rat. That rat’s name was — actually, I don’t know why I’m using this metaphor, since we don’t have rats in Alberta, but, anyway, someone spotted the issue of parliamentary privilege. How can McIver be punished by anyone but the Speaker for an utterance on the floor of the assembly?
It is unusual to the point of freakiness that an ethics commissioner found existence of a punishable offence at all. They are mostly so tentative and wishy-washy that parents could usefully uphold them as examples of adult weakness when they’re trying to feed their kids broccoli. But for an Ethics Commissioner to police parliamentary speech may be altogether unprecedented in the Commonwealth. It is — or at first glance looks like — a tread upon one of the most sacred taboos in our system of government.
McIver, anyway, now thinks so, and has found a lawyer, Brendan Miller, who is willing to take the case to a court. ( A hearing date has been set for early 2018.) “It’s a dangerous precedent, I think, for parliamentarians across the country,” Miller told Postmedia’s James Wood. He raises the question whether challenging the ministry in the assembly is exactly the same thing as “seeking to influence the Crown”; notes that McIver was challenging a policy decision that had already been announced; and suggests that the rights of McIver’s constituents have to be considered too.
It is probably important to point out that commissioner Trussler, before entering public service, was a Queen’s Counsel of very high distinction in Edmonton. If she were a judge, there would be no question whether McIver’s words were covered by the same parliamentary privilege that protects members inside the assembly from, say, defamation prosecutions.
But Trussler is not a judge. The question here seems harder because, as ethics commissioner, Trussler is an officer of the Alberta legislature itself.
In the theory of our constitution, McIver should only be answerable to the Speaker for words spoken in the assembly, even if he has an icky and undeniable conflict of interest, and it is not explicit in Alberta law that Trussler can investigate and punish McIver for those words alone. It is also not explicitly stated that she can’t. She did not address the question, either way, in her written ruling on McIver. ( Supreme Court doctrine throws the burden of proof in parliamentary privilege matters on the person asserting the privilege.)
Trussler’s authority might, in principle, be more like a standing order of the legislature — something imposed on the assembly by itself, and to which members are properly subject. It is worth figuring out, in the trial-by-combat way we have of settling these things, and whatever an Alberta judge decides will no doubt be influential throughout Confederation.
The general concern for parliamentary privilege seems legitimate, and McIver is right to choose not to lay down — or to be bound by his earlier acceptance of the ruling — just because his question-period question was ethically improper. Perhaps this case will end up being one last minor service to the public welfare from the good old Alberta PCs.