Friday, December 14, 2007

 

Ethics 101: Bribery in public office

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We're in the big waiting room (let's call it British Columbia), waiting for news from Supreme Court. Someone has thoughtfully provided a bit of background reading on the topic of bribery.

- BC Mary.

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IMPROPER USE OF PUBLIC OFFICE

BRIBERY

Bribery is one of the clearest forms of unethical behaviour that can occur in the exercise of public functions. It can be defined as the dishonest inducement of a public official to act in someone's favour by a payment or other inducement [2] . It can arise in many different contexts. For instance, when a Parliamentarian is offered money from a private corporation while matters relating to a grant for the corporation are before Parliament, the potential for bribery exists. As part of his or her official duty, the Parliamentarian must decide whether or not to award the grant, and yet he or she has been asked to do so in exchange for money. If the Parliamentarian chooses to accept the money in exchange for awarding the grant, he or she is guilty of bribery.

This infraction is covered primarily by the Criminal Code . The Criminal Code provides that when Parliamentarians obtain or attempt to obtain any valuable consideration for themselves, or another person, in respect of anything done or omitted by them in their official capacity, they are guilty of bribery. [3]

It should be noted that the Criminal Code also punishes the person who offers the bribe. It states that everyone who corruptly gives or offers any valuable consideration to a Parliamentarian is guilty of the same offence [4] . The Code provides a maximum sentence of fourteen years imprisonment for both the person giving the bribe and the one receiving it [5].

One of the more notorious examples of bribery in Canadian history took place in the 1950s in the province of British Columbia [6] . Robert Sommers, then Minister of Lands and Forests of British Columbia, was charged with receiving bribes in connection with the issuance of forestry management licences. The licences were issued to forestry companies to regulate the amount of timber that could be harvested. These licences were extremely valuable, so much so that companies were accused of making huge profits based on the sale of shares issued after the licence was granted, but before a single tree had been cut. A number of representatives from forestry companies were charged with giving bribes, and Sommers was charged with receiving bribes. Under the intensive public scrutiny of the media, the case was prosecuted over a lengthy period with prolonged political and legal wrangling in the Legislative Assembly and the courts. Eventually, Sommers was convicted on five of the seven accusations of receiving bribes, including $607 worth of rugs, $3,000 in bonds, $1,000 in cash and $2,500 sent by telegraph [7] . As a result, Robert Sommers became the first person in the Commonwealth found guilty of conspiring to accept bribes while serving as a Minister [8] .

The relevant section of the Criminal Code states that the bribe must be in relation to the individual's "official capacity". In other words, it must relate to his or her capacity as a Parliamentarian. In the early 1960s, a member of the House of Commons was charged with accepting a bribe when he agreed to assist one of his constituents in selling land to the government [9] . The government was seeking property to construct a post office in the electoral district of the member, and a number of properties were being offered, including one owned by an acquaintance of the member [10] . The normal procedure was for the government to consider all of the submissions and then consult the member of the House of Commons representing the area before making the final decision. The acquaintance offered the member $10,000 to recommend his property to the government [11]. In the end, the property of the acquaintance was selected and $10,000 was paid to the member [12] . The member argued that because he was not directly involved in the decision making, he did not accept the money in relation to his official capacity [13] . The court rejected this argument and found that a member's "official capacity" has a much broader interpretation, which included administrative functions of the government that are ultimately subject to the will of Parliament [14] .

At trial, the member was convicted but was given a two-year suspended sentence, meaning that he did not have to go to jail. On appeal, however, it was determined that the seriousness of the offence, combined with the need to deter other Parliamentarians from considering such activities, warranted a stiffer sentence. The Court of Appeal considered the fact that the member was young, married, with children and that he would no longer be able to pursue his career as a lawyer ; and yet, to mark the severity of the offence, a five-year jail term was imposed [15] . The Court stated :

The responsibility of a [member of the House of Commons] to his constituency and to the nation requires a rigorous standard of honesty and behaviour, departure from which should not be tolerated. If, in violation of their responsibilities, the services of [members of the House of Commons] can be bought then justice and freedom cannot survive, nor can this nation long survive as a place where free men can live [16] .

In addition to the provisions under the Criminal Code , bribery is dealt with in both the Parliament of Canada Act [17] and in the Standing Orders of the House of Commons [18]. The Parliament of Canada Act disqualifies a member found guilty of bribery from being a member of the House of Commons and from holding any office in the public service of Canada for five years after conviction [19] . There are no reported cases of elected officials being charged with bribery under the Parliament of Canada Act or under the Standing Orders of the House of Commons .

Another form of bribery occurs when someone contributes to the electoral fund of a member in return for a contract or other benefit. Since all members of the House of Commons are elected, the funding of political parties and candidates is an important aspect of every election. Where contributions are made with the expectation of future advantage, the behaviour is dealt with in the Criminal Code . The Code prohibits anyone from giving any valuable consideration for the purpose of promoting the election of a candidate, or a party, to Parliament or to the legislature of a province in order to obtain or retain a contract with government [20] . This provision is aimed specifically at government contractors who contribute to election funds for the purpose of obtaining government contracts. The key element of this offence is the intent of the contributor. Interestingly, it appears that this provision has never been applied, which may suggest that its mere presence is enough to discourage such conduct.

The International Cooperation Group
Publications
BRIBERY authors: Aline Baroud, Andrew Gibbs


http://canada.justice.gc.ca/en/ps/inter/imp_use_pub/page03.html

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FIRST REPORT JUST IN, FROM ANON-Y-MOUSE "PG":

As was predicted by numerous posters, the BC Government is refusing to disclose information regarding the sale of BC Rail.

Here is the first story to digest:

Documents defence wants in legislature raid case confidential, lawyer says
12:00PM

VANCOUVER - A lawyer for the executive branch of the B.C. government says the Liberals have fully co-operated with the court, the special prosecutor and defence lawyers in the legislature raid case.

George Copley says attempts by lawyers representing two former government aides to get documents deemed privileged cannot be accommodated because the information is strictly confidential.

Some of the documents defence lawyers want were seized by the RCMP during a Dec. 28, 2003, raid on the offices of Dave Basi and Bobby Virk. {Snip} ...

Some of the documents removed from Basi's and Virk's offices related to the privatization sale of Crown-owned B.C. Rail. {Snip} ...
(CP)


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