Editorial: Breach of trust is a grey area in law

Brian Bonney, a former communications director in the B.C. government, has been charged with breach of trust. He is to be in court again on June 23 on the criminal charge, which carries a maximum penalty of five years in jail.

His case is just the most recent in which the sometimes blurry line between politics and public service in B.C. has come under court scrutiny.

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It is believed that the charge relates to the so-called “quick wins” scheme the provincial Liberals dreamed up in 2011. The scheme titled the “Draft Multicultural Strategic Outreach Plan” was to woo ethnic minorities by offering apologies for past wrongs, such as the Chinese head tax.

The entire idea was contemptible. One of its leading champions — Premier Christy Clark’s deputy chief of staff Kim Haakstad — and multiculturalism minister John Yap resigned.

Why, then, is Bonney in the dock and not the politicians? Haakstad played a key role after all, and Yap was the minister ultimately responsible.

But they didn’t mix politics with public administration — politics was their only job. The presumption is that Bonney has been charged because of allegations he mixed politics with the civil-service job he was paid to do. That might explain why the provincial Liberal party refunded part of his salary to the treasury, following a review by Clark’s deputy minister.

We don’t yet know what happened, nothing is yet proven and Bonney is entitled to the presumption of innocence.

However, this case calls to mind allegations that have been brought against a series of politicians.

In 2000, former premier Glen Clark was charged with breach of trust. He was accused of receiving free home and cottage renovations from a neighbour who had applied for a casino licence. Clark was acquitted by Judge Elizabeth Bennett, who ruled that nothing in his conduct amounted to criminal behaviour.

Clark’s predecessor, Mike Harcourt, resigned over allegations he had participated in the so-called Bingogate scandal. Subsequently, Harcourt was exonerated by a special prosecutor.

Harcourt’s predecessor, Bill Vander Zalm, was also charged with breach of trust, and he, too, was acquitted.

The circumstances varied in each of these cases. But they point to a common dilemma — the difficulty in determining what counts as “breach of trust” in a government job.

Bonney was charged under Section 122 of the Criminal Code, which makes it an offence for an “official” to commit a breach of trust “in connection with the duties of his office.” But what, exactly, does this mean?

It’s generally understood that there are different rules of conduct for political staff and public servants.

Ministerial aides, for example, are permitted to participate in election campaigns and other partisan events. They are hired and fired by cabinet order, and generally leave if their government is defeated.

Civil servants are appointed under the Public Service Act on merit alone. They must not take part in political activities, and are expected to remain in their jobs if a new government is formed.

But when the public servant in question is a director of communications, just how clear is this distinction? Mailing out election flyers or helping put up signs during a campaign are clearly out of bounds.

But what about briefing the media or community groups on government policy? How about inviting people to a meeting with the minister? At what point do these kinds of actions cross the line from administration to politics?

Of course, that is a question the court must answer. Nor do we know the specifics of Bonney’s alleged infractions.

But as the experience of those former premiers shows, this is one of the greyer areas of the law.

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