The underlying policy behind conflict of interest legislation is to ensure that public officials, and persons serving the public, are able to make their decisions, and are seen to make their decisions, free from potential bias. It is necessarily a balance between the privacy rights of the person serving the public and their families, and the right of the public to scrutinize elected officials and other persons who make decisions on their behalf, particularly decisions which involve the expenditure of public money.

Persons with whom someone is emotionally close are most apt to be capable of unduly influencing their decision-making. This is particularly so when the person is someone with whom they share an economic partnership. Therefore, all such legislation has traditionally extended to spouses. However, when one considers the objectives of the legislation, there is no material difference between a spouse and a person with whom one is living in a conjugal relationship. As such, it seems clear that the category of persons which potentially gives rise to a conflict should be extended in all cases to include common-law partners.

With respect to a definition of common-law partner, it is clear that it must include same-sex partners since such persons are capable of the same type of emotional influence and economic interdependence as opposite-sex partners. This does raise the issue of confidentiality, which will be discussed below. But simply given the objectives of the legislation, there is no rational explanation for the exclusion of such persons, and all Manitobans that spoke on this issue apparently agree.

In designing a definition, it does not seem necessary, as with the acquisition of rights to support or property, that the living together relationship have subsisted for a specified period of time. If the issue is the actual or apparent ability of a person in an emotionally close relationship to influence decision-making, then that ability to influence is just as apt to be present at the beginning of the relationship as it is at the end. However, it may not be adequate that the parties are simply living under the same roof since they may be very independent from each other. The addition of the requirement that the living together relationship be a "conjugal" one creates a category of relationship that is apt to influence a person in their decision-making. "Conjugal" has a well-developed definition in law and includes the notions of economic and emotional interdependence.

These considerations are of equal importance in the various legislation that protects the public interest. Spouses are given special rights and responsibilities because their emotional and economic partnership is considered worthy of both special treatment and special responsibility.

Accordingly, the definition of common-law partner that is recommended for use in conflicts legislation and legislation concerning the protection of the public interest is:

"common-law partner" means a person who, not being married to the other person, cohabits with him or her in a conjugal relationship".

This definition has the added benefit of being the same as that currently existing in Manitoba legislation, with the exception that it omits the requirement of a specific minimum time frame for cohabitation. Consistency with other legislation is an important objective as it increases general knowledge of the legislative provisions and therefore an increased likelihood of compliance.

This definition should be standardized and used throughout all legislation pertaining to conflicts and protection of the public interest. References to the person being 'dependent" or being "held out" as a spouse are old-fashioned and no doubt arise from an age when most public officials were men and their spouses, or common-law spouses, were women who were economically and emotionally dependent upon them. This is no longer true in Manitoba and such references should be abolished.

Apart from including common-law partners in the criteria for conflicts, it may be time for the legislation, which is really a hodge-podge of criteria, to be rationalized and made consistent wherever possible. The criteria for persons, in relation to whom a conflict could conceivably arise, ranges from "family" which is undefined, to "immediate family", to "persons related by blood or marriage", to "spouses and children" so long as they are dependent, and to spouses including those persons being "held out" as a spouse. There should be a standard definition of "family" established, as well as a standard definition of "immediate family" where it is desirable to restrict the criteria. For the purposes of this report I have simply recommended that one or other of these categories be used, as consistent as possible with the existing criteria in the particular legislation.

I turn now to the issue of confidentiality. In hearing the recommendations from the gays and lesbians we spoke to, we were conscious of the fact that we were speaking to persons who were already "out" in their own lives and had some level of comfort with public knowledge of their sexual orientation. We were also conscious of the fact that some of their support was based upon the, probably mistaken, assumption that the person disclosing the conflict could do so and still keep their sexual orientation confidential. For example, some believed that the media would always support a person who desired to have their sexual orientation remain confidential. This was directly challenged by a public official we spoke to whose personal experience was that the media were not prepared to do this in his case.

Further, most believed that the legislation did not require disclosure of anything about the conflict. In fact, this is another area where the criteria ranges widely, from a requirement that the person disclose the "nature and extent" of the conflict, to only the "general nature" of the conflict, to in many cases not requiring any particulars at all. Obviously, simply disclosing the fact that you have a conflict and then removing yourself from the discussion and decision-making is far more likely to retain confidentiality than announcing that the conflict arises from a person with whom you are sharing a same-sex relationship.

Certainly there is no practical advantage in requiring a person in a conflict to disclose the details of the conflict if the only purpose of the legislation is to get them out of the room while the decision is being made. So long as they are prepared to absent themselves, providing an explanation of the circumstances giving rise to the conflict does not add anything of a practical nature. Indeed, it could be argued that a person may be less likely to disclose a conflict if they are required to disclose details where they have a concern about confidentiality. This might occur for heterosexuals as well when they would rather that the economic or business activities of their family members remain out of the public eye. If the most important objective of this legislation is to get people to remove themselves in the event of a conflict, any requirements for disclosing the details of a conflict might actually tend to hinder this.

The fact is, however, that in an effective democracy, fair decision-making must not only be done, it must be seen to be done. In this way it is similar to our legal system. It would not be sufficient for the public to be assured by a judge that a decision made behind closed doors was in fact fair and correct. The public would want the opportunity to be present to hear the evidence go in and the decision made. It is the same with conflicts. It would not be adequate for a public official to simply announce they had a conflict while refusing to divulge why. The public has elected the individual to do a job and if they are unable to discharge their duties, then the public is entitled to an explanation. Indeed, it trivializes the issue if it can be treated with this degree of cuteness.

Despite the "chilling effect" that this could conceivably have on homosexuals who wish to run for public office, or indeed on any person who is reluctant to have their business or family relationships subject to public scrutiny, our democratic right to scrutinize our elected officials outweighs these privacy rights. Unfortunately, it comes with the territory of public office. I recommend that the rights and responsibilities contained in the conflicts and public interest legislation be extended fully to common-law relationships, including same-sex relationships. I recommend that no changes be made to the disclosure requirements, except perhaps to standardize them, which is beyond the scope of this project.

There is one bright light in this area and that is that the "chilling effect" is apt to reduce over time. As gays and lesbians acquire more rights, some of which were contained in changes to legislation introduced in Bill 41 this past June, and some of which are being recommended in other portions of this report and may be proceeded with by government in the near future, the discrimination suffered by persons because of their sexual orientation is apt to decline.

Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. - Volume 1 Analysis
IV b) Submissions and Consultations	IV d) Conflict of Interest 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