As I discuss what our consultants said on this topic, it is important to note that the question of conflict of interest and the protection of the public interest is more than a comparison of the rights of same-sex and opposite-sex partners. The government has asked whether the responsibilities that now apply to elected or appointed officials should be extended to include persons in common-law relationships. I take the government's use of 'common-law relationship' to include any two people who are living together in a conjugal relationship.

During our consultations, it was our practice to discuss the conflict and disclosure subject with everyone, even if their primary interest was another topic. Even those who were not familiar with the conflict provisions acknowledged the value of having them.

Our first meeting was with several representatives of the Manitoba Association of Women and the Law and others who supported gays and lesbians in their quest as couples to be able to adopt children. Their brief had been presented to the Law Amendments Committee of the Legislature that was considering Bill 41 and a copy was provided to us in advance of our meeting.

As our discussions began, one or two of those who were present took the position that the conflict of interest laws should make an exception so gay and lesbian people would not have to disclose the fact they are living with someone of the same sex. They, as did the brief, suggested privacy laws be invoked to make any disclosure of their personal living arrangements unnecessary.

I had assumed that was the position of all gays and lesbians but that turned out not to be the case. Others who were present at the same meeting said they disagreed with the association's position and thought gay and lesbian elected officials should be subject to the same requirements as others. It appeared to me that position took the Women and the Law representatives by surprise. It turned out they had taken their position in the belief they were doing gays and lesbians a favour.

The representatives agreed they had not canvassed the matter with gays and lesbians, nor had they done any study or conducted any survey to see if their position had general support in the gay community. Others at the meeting made it clear they did not support their approach and believed it was at odds with the approach gays and lesbians wanted. As I will indicate, they were correct.

By the end of the meeting the representatives of Women and the Law had withdrawn their position and request that we urge government to provide an exception for common-law partners. They quite reasonably took the position they did not want to press their earlier suggestion if it was not supported by those they were trying to assist.

Gays and lesbians we spoke with in subsequent meetings confirmed the general opposition to the Women and the Law suggestion. Even though it is somewhat repetitive, I will indicate what others had to say on the topic of disclosure. We continued to explore the specific issue raised in the terms of reference, namely the effect on those "in a same-sex or opposite-sex relationship (who) may not be open with family, friends, co-workers and others about their sexual orientation."

Those we met with, whether they were aware of the Women and the Law presentation or not, said there should be no exceptions or special provisions for gays or lesbians who are reluctant to make their relationship known. The response was very clear - people, whoever they are and whatever their sexual preference may be, who are concerned about disclosing their assets or personal living relationship, should either not enter public life or should be prepared to accept and abide by the law like everyone else.

The Manitoba Bar Association Gay and Lesbian Issues Subsection forwarded a written submission prior to our in-person meeting with them. It stated that conflict-of-interest laws are necessary to protect the public interest in good government. It took the position that if elected officials are allowed to make decisions while in a position of conflict, democracy is undermined. It disagreed with the position taken by Women and the Law. It argued that, if their approach were adopted, the result would be that gays and lesbians would be allowed to remain in a conflict of interest situation, and that was unacceptable.

Their document made the point that when people, including gays and lesbians, run for public office they must accept the fact they will have less privacy than private citizens. A professor of law at the University of Manitoba said the gays and lesbians she has spoken to would be willing to disclose their assets and those of their partner if they were elected. She discussed how limited the legislative provisions now are and noted that a disclosure of the personal details of a common-law relationship is not required.

The association's in-person presentation took the position that the law relating to the disclosure of assets and conflicts should be the same for everyone. It suggested there should be no requirement to identify a partner or to disclose the nature of a common-law relationship. Its representatives also recommended the statutes be amended, if necessary, so the exact nature of a possible conflict would not have to be disclosed. They said the disclosure of a possible conflict, and leaving a discussion, should be all that is required.

One of its representatives suggested it is important to have an independent person in attendance at a meeting exercising some general supervision, who has knowledge of the member's assets and family members so in case the elected official doesn't recognize when he or she is getting into a conflict of interest situation, they can be reminded and remove themselves from the meeting and discussion.

Manitoba statutes cover that issue. They require the clerk of a meeting to record, in the minutes of the meeting, when someone has declared a conflict of interest and has left the room. Presumably the minutes will indicate the topic that was under discussion when the person left. Some clerks also record the time when an individual returns to the meeting and I assume the same procedure is applied during the sittings of the legislature and its committees.

EGALE which we contacted by phone, believes that all elected officials should be required to disclose areas of actual or potential conflict. Its representative said it is not necessary to disclose details about the conflict. The fact that a conflict has been announced and is recorded in the minutes should be a sufficient deterrent to a person if the same topic comes up again. While he had no problem with a requirement to disclose the general nature of a conflict he would prefer to only have to say: "I have a potential conflict." He also suggested that there should be no requirement to disclose the gender of a common-law partner.

The Manitoba Federation of Labour took the position a disclosure of assets and possible areas of conflict should be made by all public officials and the assets of married or common-law partners should be disclosed as well. It would still like individual employees to be able to maintain some privacy, and disclose their assets and those of their partners, without having to say who owns which asset.

Its representatives also suggested that the word "family" be defined in legislation. They suggested the definition should include a spouse, common-law partner, children and anyone else who is dependent on them.

Two members of the Rainbow Resource Centre said gays and lesbians do not want to be seen as seeking special rights. All they want is equal treatment. They were critical of the position taken by Women and the Law and said it would be inconceivable to have any public servant remain in a conflict of interest situation. They felt comfortable with the requirements of the Acts as they stand, believing that the disclosure of the general nature of a conflict does not mean naming names or saying that you have a same-sex partner.

Gays and lesbians and those who supported them, unanimously supported the same position. They too believe that maintaining the integrity of the governmental and administrative process is necessary in the public interest. If anything, gays and lesbians were the most vociferous in saying they wanted no special status and no special protection in this area. They said they wanted to be treated the same as other citizens, with no special privileges or concessions and urged us to recommend they have the same rules of disclosure applied to them.

The two school Trustees I mentioned when dealing with adoption believe disclosures should be made by everyone. They have to disclose the name and assets of their partner and have no problem doing that. They feel comfortable disclosing the information as they know it will be kept confidential. On another matter that turned out to be a recurring theme, they pointed out that, in practice, they do not and are not asked to disclose the general nature of their conflict during a meeting. They merely announce they have a "conflict" and leave the meeting.

They agreed with the law's requirement they disclose a possible conflict of interest that might involve their common-law partner or other members of their family. They also had no trouble declaring a conflict of interest during a Board or committee meeting and absenting themselves while a matter is discussed by other trustees.

We spoke with a member of the Manitoba Legislature whose personal relationship had been disclosed by the media during an election campaign. In spite of some discomfort that may have caused, he was strongly of the view no exception should be made for any gay or lesbian member of an elected body. He said even though there was no obligation to register his partner's assets, he did so. He said he asked himself, "what is my ethical responsibility?" If he feels he should leave a debate, all he says is, "I have a conflict" and leaves the room. He still thinks not enough disclosures are required and he suggested there should be a longer list of assets and associates that should be disclosed. At the present time, he said, conflict provisions affecting the legislature are almost impossible to enforce.

Another person with whom we spoke pointed out there is nothing in the law that requires any member to disclose the personal details of their living arrangements and felt a person could describe the "general nature of a conflict" without going into any further detail. He suggested a member could say, for example, "a friend of mine owns that land or owns a company that may bid on the contract."

I was surprised to learn the letter of the law is not being observed or enforced in at least two of the elected bodies in the province. Instead of disclosing the general nature of a conflict the elected officials merely indicate they have a conflict, leave the room, and remain out as long as the particular matter is being discussed.

We discussed the conflict issue with individuals and organizations who had expressed concerns in the other areas we were exploring. They too were unanimous in their belief gays and lesbians who are elected to public office should have to make disclosures. They felt there should be no exceptions or special rules for gay or lesbian elected officials and took the position they should have to declare their assets and those of their partner.

One person suggested the disclosure of the sex of the common-law partner should not be necessary. I assume the sex would be obvious in most cases from the name of the partner but the main concern seemed to be that the report might not remain confidential, particularly in small communities. We received no evidence to indicate there has ever been a breach of the confidentiality provisions by a Clerk of the House or by any Municipal or School Board Secretary-Treasurer. They are to keep the list of family members and their assets to themselves. This is nevertheless an issue that should be examined by government while changes are being made.

It was interesting, if not startling, to see the change in some people's attitudes when disclosure was discussed. Those who had opposed adoption rights being extended to same-sex partners were unanimously of the view that gays and lesbians should be subject to the same rules and regulations that apply to others. They said when someone accepts public office they must be prepared to list their assets and those of any partner and to declare a conflict of interest if it appears that a decision might benefit them, a friend, or a member of their family. They argued that if a married member has to disclose the assets of a spouse, a member living in a common-law relationship should have to disclose the assets of their partner.

They were unanimous in their belief that any and all obligations to list assets and to refrain from discussing an issue with respect to which they might have a conflict of interest, should be universally applied. They said the conflict of interest rules which apply to married people should apply in the same way to those living in a common-law partnership. It was pleasant to see some unanimity.

Several gays and lesbians told us the realities of these and other requirements of running for public office are well known in the gay community and should not be altered. They said the existing laws do not apply an onerous requirement on any public official and most said that if the rules are not acceptable to a person they should not run for public office.

There was no other suggestion as to how those living in a common-law relationship, that is not known to their family and friends, could avoid these requirements. On the other hand, I add, there does not appear to be anything in the statutory provisions requiring private matters to be made public. There is not, in my opinion, any ground for a Charter challenge based on the requirements that an elected person file a statement of their and their partner's assets or on the need to disclose a conflict of interest and refrain from participating in a debate.

Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. - Final Report Part II) Conflict and Protection of the Public Interest Consultations
Part II) Introduction	Part II) Advice and Recommendations
Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. Volume 1 Volume 2 (proposed Statute Amendments) Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. Final Report