Vic Toews switched sides on a deal he made as minister

Vic Toews was the Conservative MP for Provencher from 2000 to 2013. Under Stephen Harper he was Minister of Justice, then President of the Treasury Board, then Minister of Public Safety, and for his whole time in cabinet he was the senior minister for Manitoba.

The Kapyong Barracks, in Winnipeg, had housed a battalion of the Princess Patricia's Canadian Light Infantry until 2004. In 2007 Toews said publicly that he had made personal inquiries and met senior Defence officials to finalize plans to transfer the land to the Canada Lands Company. On 23 November 2007, as Treasury Board president, he approved the transfer. Treaty One First Nations, including the Peguis First Nation, said the Crown owed them a duty to consult first and took it to court. Toews, as Treasury Board president, was a named respondent. In 2012 the Federal Court found that Canada had failed to consult and set the transfer aside, and in August 2015 the Federal Court of Appeal upheld most of that ruling.

On 9 July 2013 Toews resigned his seat. Under the Conflict of Interest Act, a former minister may not take a contract for two years from anyone he had direct and significant dealings with in his last year in office, and may never act for anyone in a case the Crown is a party to and on which he acted for the Crown.

Exhibit 7

In the summer of 2012, as regional minister, Toews had met the Norway House Cree Nation twice, about an amendment to a trust that mattered to them. Meeting notes say he undertook to write a letter of support to the Indian Affairs minister. On 1 October 2013, Norway House signed a consulting contract with 6572155 Manitoba Ltd., a company owned by his wife. The contract named Toews as the consultant. The company was paid $10,000.

Exhibit 8

On 25 September 2013, just before his first meeting with Peguis's lawyer, Toews asked the Commissioner's office for advice about work for a First Nation he did not name, and got general advice on the cooling-off rules. In the Commissioner's words, no mention was made of section 34, the bar on switching sides. On 30 September 2013, Rath & Company, the lawyers for Peguis, issued the same company two non-refundable retainers of $10,500 each. The first was marked "JVG", for a Peguis joint venture with the Manitoba Jockey Club; the second "K", for Kapyong. The lawyer's statement of account shows meetings with Toews on 1 and 2 October about the Kapyong settlement proposal. In a note to Rath in March 2017, which his counsel forwarded to the Commissioner, Toews referred to "the portion of the document that I drafted". He had asked specifically about subsection 35(2). The advice assumed he had had no direct and significant dealings in his last year with the First Nation he had in mind, and he replied the same day to confirm it. At his interview he said the request had been, in his mind, about Peguis. When he resigned, the office had sent him a letter describing in detail his obligations under sections 33, 34 and 35. Separately from Kapyong, CBC reported in 2015 that filings showed him registered to lobby the Manitoba government on gaming and lotteries for Rath.

Exhibit 9

Toews testified that Rath sent him the settlement agreement Rath wanted the federal government to sign. On 2 November he wrote that he "look[s] forward to reviewing the documents". The numbered company's invoice describes his work on 5 November as "Review documents, prepare amendments". Rath's statement of account for 6 November reads "meeting Vic Toews re: settlement, review and revise settlement agreement", and for 7 November, "Calls to Darren Jorgensen [sic], Vic Toews re: settlement". An email of 21 November says Toews was considering leaving a copy of the settlement proposal with Winnipeg's mayor, Sam Katz. Rath told the Commissioner the aim was to get the city and the province on board "so that they could pressure the federal government into resolving this matter." Toews's own note says his role "would be to speak to the MPs (not memebrs [sic] of cabinet) if that was permissible", an avenue he wrote that he "never pursued".

On 7 March 2014, Toews was appointed to the Court of Queen's Bench of Manitoba. The order in council appointing him is dated 6 March 2014; Justice Minister Peter MacKay announced the appointment on 7 March, effective immediately. The release listed his offices and his law career, and nothing since he left cabinet. Canada's appeal had been heard in Winnipeg on 13 January 2014. The appellants included "The Hon. Vic Toews in his capacity as President of Treasury Board"; Rath argued for Peguis.

In March 2015 NDP MP Pat Martin asked the Commissioner to look into it. She opened an examination on her own initiative. Toews answered that, as a judge, he was reluctant to seek the information himself and suggested she ask the officials. At his interview in January 2017 he said he could not recall anything about his meetings with Norway House before he left office. He never put forward a formal position. Martin had alleged that Toews decided disaster-relief and flood funding for Peguis as a minister; the Commissioner found he had not given enough to support that. In Question Period the government's answer, from Paul Calandra, was that it was "a dispute between three individuals: none, of course, is the federal government."

On 21 April 2017, Commissioner Mary Dawson found that he had contravened subsection 35(1), by contracting with Norway House inside his cooling-off period, and subsection 34(1), by acting for Peguis on a matter where he had acted for the Crown. "Such actions are referred to colloquially as 'switching sides'," she wrote. "This prohibition applies indefinitely."

The Act's administrative monetary penalty, of up to $500, applies only to breaches of sections 22 to 27, and neither section he broke is among them. The Canadian Press, reporting the findings: "There are no specific penalties for violating the act in this matter." In his Federal Court application Toews called the findings "inaccurate and inconsistent with the evidence".

Exhibit 10

Toews challenged the report in Federal Court, then dropped the challenge. Two complaints went to the Canadian Judicial Council. In November 2017 it closed them: the conduct came before his appointment, and its reviewer found no bad faith or attempt to mislead.

The Kapyong land ended where the court cases pointed. In 2019 Ottawa agreed to sell most of it to the Treaty One First Nations, and in December 2022 the urban reserve of Naawi-Oodena was established on it.

Exhibit 11

His case, from his own testimony and his note to Rath, which his counsel sent the Commissioner: he never lobbied the federal government and was never involved in settlement negotiations with it. He told Peguis's lawyer that he "could not involve himself in the ongoing litigation or in the settlement discussions". His role on Kapyong was "strictly limited to community outreach" with city and provincial politicians, if a settlement was reached, and the part he drafted, on community liaison, was never used. Peguis's lawyer told the Commissioner that much of Toews's work was "hypothetical". The Norway House contract covered issues such as community policing and infrastructure, and the Commissioner had no evidence the work continued after he became a judge. He sought the Commissioner's advice before he started. The judicial council's reviewer said whether a contravention took place "is subject to a degree of interpretation", and, in the council's account, the Commissioner made no findings that put his integrity, good faith or credibility in question.

Exhibit 12

In his Federal Court application he called the findings "inaccurate and inconsistent with the evidence". He said he gave no "advice, direction or consultation" on settling the litigation and "merely provided strategic planning regarding potential development of the land", that the Norway House meetings were "brief and limited in nature", and that a "confidentiality requirement" kept witnesses from speaking to him or his lawyer. Rath wrote in 2017 that Toews was never asked to contact the Government of Canada and that his input on the agreement was his "impressions as to how the document would be received by the City and the Province". Daren Jorgenson, at the first meeting, told CBC that Toews "specifically told all of us that he can't do any consulting on the Kapyong file" and "suggested we meet with [Winnipeg South Conservative MP] Rod Bruinooge and/or [St. Boniface Conservative MP] Shelly Glover", and called the Kapyong talk "just in general fluff. Not really advice." Toews could not recall the meeting with the mayor and said he likely spoke about urban reserves in general. The government's answer in 2015 was that this was "a dispute between three individuals: none, of course, is the federal government." As a sitting judge, a court official said, it would not be appropriate for him to comment.

Exhibit 13

Exhibit 14

The section he broke does not ask whether he talked to Ottawa. It asks whether he acted for a party against a decision he had made for the Crown, and he did: he advised Peguis's lawyer on the settlement proposal while the case was still before the courts, and, in the Commissioner's words, "was involved in the drafting of a portion" of it. "Hypothetical" work on how to settle a lawsuit against the Crown is still work for the plaintiff. The advice he sought named no First Nation, and, the Commissioner found, no mention was made of section 34. On Norway House the test is the dealings in his last year, and the meeting notes show them. He challenged the report in court and dropped the challenge. The judicial council asked whether he could serve as a judge, "without expressing any views about the conclusions reached by the Commissioner".

"Not really advice" and "strategic planning" meet the documents: Rath's own entries to "review and revise settlement agreement" in a meeting with him, the numbered company's invoice for "Review documents, prepare amendments", and the Commissioner's count of strategic advice on at least 4 occasions. The part he drafted, by his own note, was a "dispute resolution mechanism to be used if a settlement was to be achieved with the federal government and Peguis". "Community outreach" is his phrase; Rath told the Commissioner the meetings were meant to get the city and the province on board "so that they could pressure the federal government". The government called it a dispute between individuals. The Kapyong file was not one: the appeal over his decision was Canada's, and it named him.