It’s hard to say how Independent MLA John van Dongen’s conflict-of-interest complaint against Premier Christy Clark is progressing.
But it’s easy to say how he thinks it’s going — not well.
Van Dongen took the unusual step recently of releasing a letter he wrote to the stand-in commissioner — Regina lawyer Gerald Gerrand — who is handling the case.
Sources say his findings are expected to be submitted to the Speaker next week.
Gerrand has been a conflict-of-interest commissioner elsewhere in Canada and took the file after B.C.’s Paul Fraser stood down because of family ties to the government. Gerrand is constrained from saying much about the case while it is still being adjudicated.
But you can tell from the crusading MLA’s letter that van Dongen feels put out about the commissioner’s approach to the case.
And there’s a small clue in the transcript of Gerrand’s interview of van Dongen — which the MLA also posted publicly — that suggests the commissioner isn’t on the same wave length as the MLA.
Van Dongen put together a lengthy brief that argues Clark breached the conflict-of-interest act. Although she recused herself from cabinet meetings years ago where the B.C. Rail deal was discussed (because a family member was involved with one of the bidders), he alleges she didn’t do that for all the relevant meetings.
This was all 10 years ago and would have been a dead issue, except that Clark returned to politics, won the B.C. Liberal leadership and became premier. Her return, and her version of how she recused herself, galvanized van Dongen, who has spent countless hours pursuing the issue.
Last September, he filed it with the conflict-commissioner’s office and it eventually fell to Gerrand to handle it.
He interviewed van Dongen in January, and the transcript shows he was particularly interested in how van Dongen’s theory fits the legal definition of conflict of interest.
It’s strictly defined as when a politician exercises an official duty and at the same time knows there’s an opportunity to further their private interest.
“It seems to me that there’s two fundamental ingredients that must be present for there to be a conflict of interest,” he observed.
Gerrand also told van Dongen “your materials don’t identify what private interest you believe is in issue.”
“What do you say Christy Clark’s private interest was with respect to the B.C. Rail matter?”
Van Dongen responded that Clark declared the conflict of interest when she recused herself. He also noted evidence that one of the bidders donated to her political campaign in 2003.
But Gerrand persisted on the point of what her private interest was.
“Do you have any facts that would help me understand how her private interest would be advanced?”
Gerrand asked versions of the same question five more times over the course of the interview.
Then last month, he wrote a followup letter to the MLA. It hasn’t been released.
But van Dongen’s reply was published, and it’s not the work of a man satisfied with the way his complaint is being dealt with.
He suggested Gerrand isn’t reading the brief he submitted correctly. (“I reasonably assumed ... you would be entirely familiar with the brief.”)
He also said one of Gerrand’s questions “completely misses the point.”
He said the inquiry letter left him with the impression that “you regard me as a party litigant who has the burden of proving each material element of a conflict-of-interest allegation, failing which my claim will be dismissed. That, of course, is not the case.”
“I must also say that the tone and content of your questions ... left me with the uneasy sense that, at least in your eyes, I am the one who is on trial. That, too, is not the case.”
Van Dongen told the commissioner: “No matter how many times I read your letter, I cannot find any sign that you have or will conduct a probing and thorough cross-examination of relevant witnesses to establish the true facts.”
It’s an odd stance to take with someone who is about to pass judgment on a submission van Dongen has devoted himself to for months. Unless he is reasonably sure he’s already lost the case.
We’ll likely find out next Wednesday.
