Ethical Conduct in Cabinet Absent Precise Definitions of Conflict

The Conflict of Interest Act (the “Act”) is likely one of the most reviewed pieces of legislation this week, as a result of the release of the the Trudeau II Report. The characterizations of the Report, and the underlying lessons that may be gleaned, risk being lost to partisan narratives absent close scrutiny.

The history of attempts to define rules around conflicts of interest go back to at least the 1970s, but despite several discussion papers, task forces, committees, inquiries, and reports, very little was actually achieved for over three decades.

The first of these was a green paper introduced in 1973 by Allan MacEachen, President of the Privy Council. The paper, Members of Parliament and Conflict of Interest, was the first attempt to create rules for all Members of Parliament, and not just cabinet members. Despite discussions in House of Commons Standing Committee on Privileges, the formulation of recommendations in 1975, and a number of bills then introduced in 1978 to implement some of these recommendations, none of them actually proceeded as was Parliament dissolved.

The conflict of interest guidelines created by Prime Minister P.E. Trudeau in 1973 remained in place, with new guidelines for cabinet members’ spouses and dependent children were issued by Prime Minister Joe Clarke in 1979. New amended guidelines were tabled by Prime Minister P.E. Trudeau in 1980.

The presence of The Harbour Dredging Scandal during this period, also known as Harbourgate, was one of the main political impetus for these debates. Former Hamilton harbour commissioner Ken Elliott was charged with others for fraud, conspiracy and uttering forged documents in a kickback scheme that cost taxpayers over $4 million. It involved 14 months of RCMP investigation and a two month trial. A cabinet member of Prime Minister P.E. Trudeau, John Munro, was initially implicated in the scandal, though ultimately exonerated.

A Task Force on Conflict of Interest was struck in 1983, which lead to recommendations in the Ethical Conduct in the Public Sector report (the Starr-Sharp report) the following year, including the creation of a Code of Conduct. In 1985, the Standing Committee on Management and Members’ Services considered the existing conflict of interests laws adequate, but passed a Code, which was then amended in following years. Bill C-34 (37-2) would have had this Code administered by the Ethics Commissioner, but the bill was ultimately unsuccessful as parliament was prorogued.

In 1986, Sinclair Stevens, a lawyer and cabinet member, was forced to resign as a result of allegations around conflicts of interest around his private business interests. An inquiry by the Parker Commission found the following year that he had violated conflict of interest rules on fourteen counts. Although he did not directly profit from any of the actions he took while he was a cabinet member, a conflict of interest was created by approving grants to a company that his wife was negotiating a loan with. Four different conflict of interest bills were introduced following the report, but none of them were successful.

The finding of the Parker Commission was overturned by the Federal Court in 2004 in Stevens v. Canada, criticizing the Commissioner’s ability to draft his own definitions of “real conflict of interest” and “apparent conflict of interest,” which he lacked jurisdiction to do. The inability of Stevens to know in advance the standard he was to be judged for a conflict of interest violated notions of procedural fairness,

[42]I am of the opinion that the plaintiff did not know the standard he was to be judged against as the definition of conflict of interest was not made known to him until the Report was given to him. This is especially so when Commissioner Parker was to determine whether the plaintiff was in a real or apparent conflict of interest as defined by the Mulroney Code and the letter from the Prime Minister dated September 9, 1985. As well, it appears to me that it would be unfair to develop a standard at a point in time after the conduct being complained of has occurred. I am of the view that it was a breach of the duty of procedural fairness owed to the plaintiff, to set a standard or definition of conflict of interest by stating the definition for the first time in the Report. In my view, the definition should have been stated in the various conflict of interest guidelines or code.

After 18 years of fighting this legal battle, Stevens attributed the media, the bureaucracy, and the opposition for creating the appearance of a scandal,

Their dedicated drive was to topple the Mulroney government and they would decide on a minister that they wanted to take on and I got into their sights.

Concurrent with this was the Airbus Affair, starting in 1995, involving allegations of Prime Minister Brian Mulroney receiving secret commissions for the purchase of a large number of jets, giving rise to further interest in defining conflict rules. In 2009-2010 the Oliphant Commission inquiry concluded that Mulroney had entered into agreements involving business and financial dealings which were inappropriate, but the focus of the inquiry was on whether there were ethical rules or guidelines that would cover these dealings, and whether the Privy Council office should adopt different procedures,

The Terms of Reference in paragraph (l) specifically direct me to perform my duties “without expressing any conclusion or recommendation regarding the civil or criminal liability of any person or organization.” Accordingly, nothing written in this Report should be construed as an indication that I have come to any conclusions or opinions on the subject of the possible civil or criminal liability of any person.

An Ethics Counsellor was appointed in 1994, with amendments to the Code. A motion as passed in 1995 to create a Special Joint
Committee to further develop a code of conduct, which led to the 1997 Special Joint Committee on a Code of Conduct report, also known as the Milliken-Oliver Report. The findings of this report were the basis of a proposed parliamentary ethics initiative in 2002 by the Deputy Prime Minister, the Hon. John Manley and Bill C-34 (37-2). The Parliament of Canada Act, also prompted by the Milliken-Oliver Report, came into force in 2004, creating a new office and the new position of Ethics Commissioner to administer the Conflict of Interest Code for Members of the House of Commons.

It wasn’t until Bill C-34 was re-introduced as Bill C-2 (39-1) in 2007 that the Federal Accountability Act, and the Conflict of Interest Act the following year, turned these principles were turned into statute. The Conflict of Interest and Ethics Commissioner administering this act is appointed under s. 81 of the Parliament of Canada Act, and was created to replace the former Ethics Commissioner. This Commissioner must be a former judge, board, commission or tribunal member, or former Senate Ethics Officer or Ethics Commissioner, and the new role provided supervisory and enforcement roles, as well as investigatory powers to determine contraventions of the Act.

The debates in the House around Bill C-2 make it clear that the Members were largely focused on the the “Adscam” Sponsorship Scandal. The scandal involved a kickback scheme to Liberal Party-linked ad firms owned by Jacques Corriveau, in return for little or no work. The programs were justified by the very pressing and important need to maintain national unity in light of 1995 Quebec Referendum. The scandal led to the fall of the Liberals in power, but provided the political momentum for the creation of The Conflict of Interest and Ethics Commissioner. The Act is therefore meant to prevent improper furthering of private interests by elected public officials.

The Commission of Inquiry into the Sponsorship Program and Advertising Activities, also known as the “Gomery Commission,” investigated the Adscam scandal thereafter. The report concluded that although there was no evidence that both the former Prime Minister Cretien and his Chief of Staff from 1993-2001, Jean Pelletier, were involved in any wrongdoing, they were still responsible for the scandal because the program the Prime Minister created circumvented normal administrative safeguards,

There is no evidence that Mr. Pelletier was in any way involved in Mr. Corriveau’s kickback scheme, although it would have been more prudent for him to investigate the general suspicions that he says he communicated to the Prime Minister when, according to his testimony, he had a hunch that there was something not quite right about Mr. Corriveau. The absence of any evidence of direct involvement in Mr. Corriveau’s wrongdoing entitles both Mr. Pelletier and Mr. Chrétien to be exonerated from blame for Mr. Corriveau’s misconduct.
But they are to be blamed for omissions. Since Mr. Chrétien chose to run the Program from his own office, and to have his own exempt staff take charge of its direction, he is accountable for the defective manner in which the Sponsorship Program and initiatives were implemented. Mr. Pelletier failed to take the most elementary precautions against mismanagement – and Mr. Chrétien was responsible for him.

The report was widely criticized as the product of Liberal Party in-fighting. It was also submitted for judicial review to the Federal Court in Chrétien v. Canada, where Judge Teitelbaum concluded that the commissioner prejudged the issue and was not impartial to the former Prime Minister, including making pejorative statements made about him. In assessing whether the commissioner breached the duty of procedural fairness, the court considered whether there was a reasonable apprehension of bias towards Mr. Chrétien, on the basis of public statements made by the Commissioner and his spokesperson,

[80] After reviewing the evidence placed before me on this issue, I am convinced that there is more than sufficient evidence to find that an informed person, viewing the matter realistically and practically and having thought the matter through, would find a reasonable apprehension of bias on the part of the Commissioner. The comments made by the Commissioner, viewed cumulatively, not only indicate that he prejudged issues but also that the Commissioner was not impartial toward the applicant.

[106] I am convinced that an informed person, viewing the matter realistically and practically and having thought the matter through would find that the Commissioner’s statements to the media during the Phase I hearings, after the release of the Report and upon his retirement, viewed cumulatively, indicate that the Commissioner prejudged issues under investigation and that he was not impartial toward the applicant. The nature of the comments made to the media are such that no reasonable person, looking realistically and practically at the issue, and thinking the matter through, could possibly conclude that the Commissioner would decide the issues fairly.

Relying on Newfoundland Telephone Co. v. Newfoundland, the court set aside the findings of the Report as they related to Mr. Chrétien. A similar conclusion was made in the companion decision regarding Mr. Pelletier. The practical effects of this was simply to discredit the factual conclusions made, as the Commission was only a fact-finding inquiry.

Yet this finding was appealed to the Federal Court of Appeal, where the appellant claimed the reasonable apprehension of bias test was applied too rigidly, and that Justice Teitelbaum incorrectly used the public statements made about Mr. Chrétien. The court rejected both of these submissions outright.

Ultimately this turned out to be a political scandal that wasn’t so scandalous, at least not to the extent of involvement of the Prime Minister and his inner circle as depicted during the height of the controversy. Yet the appearance of controversy was sufficient to displace the government and provide significant political capital to the opposition, even in the absence of facts.

The Trudeau II Report provides a similar factual conclusion, in that in does not make any independent determinations except for reviewing the information that is available before it. Where it is dissimilar is that there have not been public comments to the media that would suggest a reasonable apprehension of bias. That does not mean that it is without flaws.

The relevant sections of the Act used in the report are ss. 7, 9, as follows:

Preferential treatment

 No public office holder shall, in the exercise of an official power, duty or function, give preferential treatment to any person or organization based on the identity of the person or organization that represents the first-mentioned person or organization.

Influence

 No public office holder shall use his or her position as a public office holder to seek to influence a decision of another person so as to further the public office holder’s private interests or those of the public office holder’s relatives or friends or to improperly further another person’s private interests.

The first section was the basis for the initial examination request on Feb. 8, 2019, following a Globe and Mail article alleging that the former Attorney-General claimed to have been receiving improper pressure from the Prime Minister’s Office around the deferred prosecution agreement with SNC-Lavalin. The Commissioner found no basis for this examination, but then proceeded to initiate a separate examination of a potential contravention under s. 9, based on his powers under s. 45(1) of the Act.

The conclusion of the Commissioner was that the Prime Minister sought to influence the former Attorney General’s decision not to interfere with the decision to refuse deferred prosecution, based on several instances:

  1. On September 17, 2018, Mr. Trudeau and Mr. Wernick cited numerous economic and political factors to the former Attorney General to attempt to justify the need to find a solution.
  2. October 19, 2018, when SNC-Lavalin filed for judicial review of the deferred prosecution agreement, senior political officials attempted to expedite the hearing or ask for a stay.
  3. Between November 22 to December 18, 2018, senior political staff made several attempts to have the former Attorney General obtain external legal advice.
  4. On December 19, 2018, the Clerk of the Privy Council had a conversation to have the Attorney General reconsider the decision not to intervene in the deferred prosecution decision.

This last instance is described as the most flagrant attempt to influence the Attorney General, and is of course the conclusion drawn from the now infamous audio recording of the phone call,

Ms. Wilson‑Raybould expressed in clear terms her view that the conversation amounted to political interference—because Mr. Wernick was speaking for the Prime Minister—and voiced her unwillingness to overrule the Director of Public Prosecutions’ original decision. Despite Mr. Trudeau’s testimony that he did not know what prompted Mr. Wernick to make “such stark statements” when engaging with Ms. Wilson‑Raybould, it is difficult for me to imagine that Mr. Wernick would have acted without a full and clear appreciation of Mr. Trudeau’s position on the matter.

SNC-Lavalin’s application for judicial review was notably struck as having no reasonable prospect of success by the Federal Court in SNC-Lavalin Group Inc. v. Canada , despite very detailed and complex submissions by the Applicant. The court held that despite well-articulated arguments raising many issues, the application did not create any uncertainty around the jurisprudence in the area.

The Applicant claimed that the Director of Public Prosecutions’ decision not to offer or negotiate a remediation agreement section 715.32 of the Criminal Code, the same decision that the Prime Minister’s office sought to influence the former Attorney General. The court ruled that this decision is clearly an exercise of prosecutorial discretion, and consideration of the public interest does not transform these provisions into an administrative decision that would be subject to review,

[133] In my view, Okimow captures the state of the law as established and reiterated by the Supreme Court of Canada on the same issue raised in the present case and in the context of a very analogous decision. The remediation regime in Part XXII.1 of the Criminal Code is recently enacted but it bears a strong similarity to alternative measures which have been authorized in the Criminal Code for decades. Both are measures that permit an alternative to the normal or traditional prosecution of an offence. Both are premised on the prosecutor’s determination that there is a reasonable prospect of conviction and on the acceptance of responsibility for the alleged wrong doing by the accused. Where the accused meets the conditions of the alternative measures program, the charges are dismissed. Although the statutory language of section 717 of the Criminal Code is not identical to that of section 715.32, a condition for alternative measures to be offered is that the prosecutor “is satisfied that they would be appropriate, having regard to the needs of the person alleged to have committed the offence and the interests of society and the victim” (paragraph 717(1)(b)). Unlike the remediation regime, alternative measures programs are established within the province and territory and the additional relevant conditions are included within the specific program rather than directly in the Criminal Code. Also unlike the remediation regime, alternative measures are for individuals, not organizations. However, these differences are minor and do not detract from the many similarities in the objectives, the nature and the key features of both regimes.

[136] I do not accept the Applicants’ submission that the remediation agreement regime is a parallel process and, as such, is not in the same category as decisions made regarding a prosecution which have been found to be within prosecutorial discretion. There would not be a remediation agreement regime or the possibility of being invited to enter negotiations for a remediation agreement unless an organization was charged with an offence and a prosecution had been launched. The remediation agreement regime is not a pre-charge type of diversion. The goal of a successful remediation agreement—one that is negotiated, approved and complied with—is a stay of proceedings. The very definition of a remediation agreement in Part XXII.1 is “an agreement, between an organization accused of having committed an offence and a prosecutor, to stay any proceedings related to that offence if the organization complies with the terms of the agreement” [emphasis added by the court]. The prosecutor would not take the first step without considering the possible end result of a stay of the criminal proceedings. The remediation agreement regime exists within the criminal proceedings and offers an approach to permit a stay of those proceedings.

The only exception to this principle would be where prosecutorial discretion involved an abuse of process, which arguably could have arisen if the former Attorney General in fact heeded the course of action that the Prime Minister appeared to prefer. Although the Federal Court’s decision is currently being appealed, at this stage it does appear that the former Attorney General’s position has largely been substantiated by the court, in that her refusal to be involved insulated the decision from judicial review, thereby protecting the Prime Minister. The most redeeming qualities of these proceedings for the Prime Minister are that the Applicant’s submissions do appear to substantiate the public interest in light of the impact on domestic jobs.

Because senior political officials were acting on the instructions of the Prime Minister, their actions were considered an attempt to influence the Attorney General, especially because these staff members on their own authority had no influence over her. The Commissioner cited the Prime Minister’s own Open and Accountable Government guideline, which states,

Ministers and Parliamentary Secretaries must act with honesty and must uphold the highest ethical standards so that public confidence and trust in the integrity and impartiality of government are maintained and enhanced. As public office holders, Ministers and Parliamentary Secretaries are subject to the Part I requirements of the Ethical and Political Activity Guidelines for Public Office Holders set out in Annex A, as well as the best practices for fundraising and dealing with lobbyists that are set out in Annex B. Moreover, they have an obligation to perform their official duties and arrange their private affairs in a manner that will bear the closest public scrutiny. This obligation is not fully discharged merely by acting within the law.

[emphasis added]

The attempt to influence alone was insufficient for a contravention of s. 9 of the Act, so the Commissioner proceeded to evaluate whether this influence was intended to advance the private interests of SNC-Lavalin. He noted that the definition of private interest has expanded significantly since the 1973 green paper, and instead used an expansive interpretation based on a statutory interpretation of the principles in the Act,

An interpretation of the term “private interest” read contextually, in its grammatical and ordinary sense harmoniously with the scheme of the Act, the purpose of the Act and the intention of Parliament, leads me to believe that it may include all types of interests that are unique to the public office holder or shared with a narrow class of individuals.

What the Commissioner does not include in his analysis is s. 3, which lays out the purpose of the Act, including the creation of clear conflict of interest rules, minimizing the possibility of conflicts arising, and to facilitate interchange between the private and public sector. This last component alone seems to emphasize a more narrow application of private interests than applied here, and the statutory provisions should not be read in isolation and disconnected from their context within the Act. The expansive interpretation of private interests used by the Commissioner has significant public policy ramifications, as noted in by Errol Mendes in the New York Times, creating potential conflicts of interest for nearly every government decision that involves or implicates private business.

Because the Commissioner assumed that SNC-Lavalin’s financial interests would have been furthered if this supposed influence was effective, the Commissioner concluded that this influence was to advance a private interest. This assumption may not have been correct, given the challenges with successful prosecution for white collar crimes. Joseph Warin points out in the Harvard Law School Forum on Corporate Governance and Financial Regulation that settlements, including restitution and remediation agreements, are a much more powerful tool to punish and reform corporations accused of wrongdoing in the U.S. than going to trial.

Using the plain and ordinary meaning of the word “improper,” the Commissioner concluded that a contravention of s. 9 occurred. Central to this analysis was the Shawcross Principle, which was described by Kent Roach as follows,

The Shawcross Principle articulated in 1951 is a constitutional convention that while the Attorney General (AG) is entitled to consult Cabinet colleagues about the policy implications of prosecutorial decisions, he or she is not to be directed or pressured on such decisions by the Cabinet and that the decision should be made by the AG alone.

Despite these early origins in England and reference to prosecutorial independence by Prime Minister Harold Macmillan in 1959, the Honourable Marc Rosenberg points out in the Queen’s Law Journal that these principles were not formally adopted in Canada until 1978,

Since 1978, however, there has been no serious challenge to the Shawcross doctrine in Canada . Occasional lapses by a premier or other cabinet member — as where the premier in full rhetorical flight announces that controversial federal legislation will not be enforced in his province — are the result of ignorance rather than intentional defiance, and have usually been quickly remedied.

Professor John Edwards explained these principles in a 1980 study on Ministerial Responsibility for National Security as follows:

  1. The AG should take into account all relevant facts, including the public interests
  2. The AG is not obliged to consult with cabinet members, but is entitled to do so
  3. Assistance provided by cabinet members is only confined to providing advice, not directions
  4. Responsibility for decisions are only with the AG, without governmental pressure
  5. The AG cannot shift the responsibility for these decisions on cabinet generally

Edwards refers to the Watergate affair in the U.S., and the blatant interference by the Attorney General in the justice system, as a guaranteed way to erode the public confidence in the administration of justice. The types of private interests that should not create political motivation for prosecution include the political fortunes of the Attorney General or their party and government in power, and not the broad interests of the public at large that do not impact any single political group or factional interest,

In my view, it is not only proper but desirable that the Attorney General (or the D.P.P.) should exercise both legal judgment and an appropriate degree of political sensibilities when assessing the weight to be given to relevant political considerations of the legitimate kind to which I have referred earlier.

Where matters of high state or the general public interest are involved it makes eminent sense for the Attorney General to consult his ministerial colleagues, including, if necessary, the Chief Executive, with a view to estimating their particular contributions to an understanding of the wider issues that may be involved. Hopefully, the occasions where such consultations become advisable will be few and far between.

In any event, what must not be allowed to happen is an abdication by the Attorney General of his ultimate authority and responsibility for making the final decision. This may be thought to be counselling the ideal situation and I recognise how far short the actual practice may fall in fulfilling this kind of proper relationship. In my Commonwealth visits I was reminded again and again of how important harmonious relations between the Attorney General and the Director of Public Prosecutions of a state were to the effective functioning of a system dedicated to the ideals of independence and impartiality in matters of prosecution.

…no matter how entrenched constitutional safeguards may be, in the final analysis it is the strength of character and personal integrity of the holder of the offices of Attorney General (or Solicitor General in some countries) and that of the Director of Public Prosecutions which is of paramount importance. Furthermore, such qualities are by no means associated exclusively with either the political or non-political nature of the office of the Attorney General. Instances of indefensible distortion of the Attorney General’s powers can be documented in countries which have subscribed to the public servant model of that office, equally with the occupancy of the ministerial portfolios of Attorney General and Minister of Justice in other countries of the Commonwealth. It is these kinds of situations that induce general disillusionment with democratic government.

What should be clear is that the Act, as drafted, debated, or contemplated at any time prior to this controversy, was never intended to interpret private interests or influence in the context of the Shawcross principles. The propriety of influence exerted by a public officer under s. 9 was never intended to apply to interactions within cabinet. This type of application by the Commissioner could be described as similar to the Parker Commission, in that it creates a definition of conflict that is undefined at the time of the actions being scrutinized.

Errol Mendes also criticizes the Commissioner’s approach towards assessing the improper consideration of financial interests of corporations in the context of the Shawcross doctrine,

This approach is straying outside what can be regarded as a conflict of interest analysis and moving his mandate into the highly complex area of constitutional principles regarding prosecutorial independence, and the specific constitutional roles of ministers and senior government officials who interact with the attorney general.

This is the domain of constitutional experts providing advice to governments, the courts and especially the top courts of parliamentary systems.

While there can be legitimate discussions on whether the prime minister and his officials crossed a line in their attempts to influence the decision of the attorney general in terms of the Shawcross doctrine, in terms of ministerial and cabinet responsibility, it should not be part of any application of Section 9 of the Conflict of Interest Act.

That’s not to say that there isn’t some conduct here that is undesirable, especially in the interference of the executive into the process of legal proceedings. The attempts to influence the Attorney General in the manner described in the Report is indicative of an entirely different trend in Canada, involving the centralization of power of the executive within the Westminster model.

Evert A. Lindquist and Chris Eichbaum point out in Governance that significant concerns arose in late 2014 to 2015 around the democratic practices of the Harper government, in particular in how power of the prerogative of cabinet was exerted by the Prime Minister’s office. These concerns highlighted a significant impact on transparency and the relationship between government and the public service.

Andrew Caddell, formerly of Global Affairs Canada, commenting on the Auditor General Michael Ferguson’s report on the Phoenix Pay Problems,

The whole mess relates to what Mr. Ferguson calls the “broken…culture” of the public service. For students of public administration in Canada, this is straight from author Donald Savoie’s book Governing from the Centre, which focuses on the concentration of power in the Prime Minister’s Office and the Privy Council Office…

The residual effect of these changes, especially in the years under Stephen Harper, was deputy ministers and ambitious senior bureaucrats knew speaking “truth to power” or offering bad news was career limiting. When opinions diverged between the PMO/PCO and the bureaucracy, the head of department was soon “retired” or became a “senior adviser” in a small office.

However, the trend towards centralization, and away from the doctrine of primus inter pares (“first among equals”), likely started much earlier than this. James Bowden located primary source documents which suggest that the trend of centralization goes back much farther to William Lyon Mackenzie King, and was advanced further by Lester B. Pearson, preceding the restructuring of the cabinet committee structure and Privy Council Office undertaken by Prime Minister P.E. Trudeau from 1968-1979. This argument runs directly contrary to the highly partisan nature of discussions around the subject, but also provides some basis for multipartisan cooperation on reform initiatives.

Patrice Dutil, author of Prime Ministerial Power in Canada, goes even further, and claims that the centralization of power was present since the inception of Canada, especially through the appointments structure. Beyond just appointments to the deputy minister corps, John A. Macdonald named himself the Minister of Justice in 1867, and appointed his brother-in-law, who lived with him, as the Deputy Minister. He also appointed himself Minister of the Interior, Commissioner of Indian Affairs, and Minister of Public Works. The lack of communication technologies at that time, and interruptions in contact across Canada during the winters, may have necessitated political patronage to individuals who expressed loyalty.

Of course this type of approach to governance today would not only be inappropriate, it would run directly afoul of all notions of ethics and conflicts. The proper question is to what extent the model should be reformed.

Philippe Lagassé explains in the Canadian Parliamentary Review that the executive’s dominance in Parliament and control of key royal prerogatives is largely exerted through the office of the Prime Minister and the PMO’s staff,

The centralization of policy decisions and communications within the PMO and PCO was built upon the authority the prime minister wields through appointment prerogative. The appointment prerogative ensures that ministers are responsible and accountable to the prime minister for the policies and performance of their departments. This grants the prime minister ultimate responsibility for, and final accountability to the Crown and Parliament, for all departments and the affairs of his or her government as a whole.26 With this responsibility and accountability comes the final say on policy and communications. Over the past four decades or so, prime ministers have relied on their political staff in PMO and civil servants in their de facto department, PCO, to help manage and coordinate their absolute responsibility and accountability for government.

In other words, the type of pressure and influence exerted by the PMO and staff described in the Report is indicative of a broader problem and a trend observed in Commonwealth countries and their use of the Westminster model. However, many of these other countries, such as New Zealand, Australia and the United Kingdom, undertook widespread reforms, largely utilizing the New Public Management approach, which emphasizes a shift from a unified management system to a decentralized one, where Ministers have maximal flexibility and have less restrictions imposed on them.

Ironically, Lagassé claims that the control of policy and communications by PMO and PCO is itself subject to reform, and points to promises made by Prime Minister Trudeau to provide greater leeway and autonomy. However, no real reform of institutional structures occurred over this period, as was observed in other jurisdictions, that would ensure this would occur.

Lindquist and Eichbaum point to some of these international trends to demonstrate the flexibility and effectiveness of Westminster principles for dealing with change, 

Significant reforms that change institutional trajectories can not only take time to implement, they often have breadth: Westminster can be used for more than enabling significant policy shifts, it can be the object of reform.
[emphasis added]

One of the main areas they prioritize for reform is the relationship between prime ministers and their caucus members,

The recent demotion of three prime ministers in Australia by caucus of both major political parties, stands in contrast to the Canadian model. It induces a remarkable amount of short‐termism and internecine struggle, energy more usefully directed to engaging stakeholders and developing longer‐term strategies. It penalizes governments for taking necessary, significant reforms at the risk of temporary declines in popularity, which might be in the public and party interest over the longer term. This suggests that the bargains among first ministers, caucuses, and political parties should be explored as systematically as public service bargains. Relatedly, Tiernan (2016) notes that the centralization and personalization of prime minister and cabinet offices (even among leaders from the same political party) risks corroding continuity and learning across leaders and governments (even from the same political party), less grooming for future leaders, and thinning relationships with the public service. The concern is that central agencies and political parties alike may not be providing sufficient glue and institutional memory across leaders and governments.

This relationship, and the professed ability of the PMO to consult with the Attorney General, was one of the central basis for the Commissioner finding improper influence under s. 9 of the Act, citing the Shawcross principles. What Roach points out is that this doctrine was developed during an entirely different period of time, when cabinet communications were far more formal, and prior to the centralization of government.

Roach also rejects the alternatives to this doctrine, as prosecutions completely devoid of policy considerations would have significant international and foreign affairs implications. He also considers the widely-contemplated proposal of having the Attorney General sit outside of cabinet entirely, but this still would still compromise prosecutorial independence by exposing such individual improper pressure and even dismissal, as described by Edwards. He considers a more limited involvement of the Attorney General with the Director of Public Prosecutions,

Where we may learn from British practices are guidelines and procedures to govern the type of consultations contemplated by the Shawcross principles. For example, some British guidelines attempt to limit the AG’s interventions in individual cases to cases where national security is at stake with the AG reporting on the decision to Parliament. They also contemplate that the AG may initiate public interest consultations with other departments while making clear that prosecutorial decisions will be made by the AG or DPP as the case may be.

Lagassé explains how Canada, as a parliamentary democracy, utilizes the constitutional convention that most members of cabinet are drawn from the lower, elected house, and are expected to command the confidence of the Commons,

Ministers, furthermore, hold executive office in law, while the confidence convention is a political rule. The prime minister is appointed by the Crown and advises the appointment of the remainder of the ministry. Ministerial offices are legally independent of Parliament and of the fact that ministers are usually parliamentarians. Indeed, in law, neither the prime minister nor other ministers need to be parliamentarians when they are appointed. This arrangement allows the executive to function when Parliament is not sitting or is dissolved. It further means that the authority of ministers to govern is not legally affected by what happens in Parliament. Ministers remain in office until they resign or the prime minister advises their dismissal. Prime ministers remain in office until they resign or are dismissed by the Crown.

The challenge is that the prime minister typically is the one who determines how conventions apply, and which procedures are used, as government formation still revolves around the prime minister.

What is clear here is that the interpretation of the applicability of the Act in this manner by the Commissioner involves some rather significant policy-making as it relates to complex issues around cabinet relationships, without any underlying reforms of the underlying institutions. Section 86 of the Parliament of Canada Act, which provides the mandate of the Commissioner, prevents under subsection (5) the duties and functions from “limiting in any way the powers, privileges, rights and immunities of the House of Commons or its members.”

Given the constitutional uncertainties and ambiguity around the powers of the PMO as it relates to consulting with the Attorney General around deferred prosecution agreements, and the applicability of the Shawcross principles in this context, the findings of the Report may pushed or even crossed these statutory boundaries. The standard of review in the context of these relevant legislative provisions, the structure of the legislation, and its overall purpose, has been interpreted by the Federal Court as being on a standard of reasonableness. While the Commissioner’s findings may arguably be technically incorrect in law, they may still be a reasonable one that does not stray improperly from its legislative mandate, given the broad statutory discretion afforded to the role generally.

However, to the extent that conclusions are drawn from his fact finding, they should be extended to the need for broader reforms as it relates to the Westminster model and prosecutorial decisions. More importantly, prior to the creation of the Report it would have been nearly impossible for the PMO to anticipate and govern in a manner that presupposes how the Act would apply here in an entirely novel and unique manner.

Also worthy of further discussion is the role of cross-cultural communication, especially as it relates to the exertion of power, and how these perspectives differ from an Indigenous perspective. The former Attorney General frequently invoked her Indigenous heritage throughout the SNC-Lavalin affair, which was often perceived by outsiders as political posturing or use of identity politics to bolster her position. To the informed and astute observer, however, the nature and the frequency of the communications between PMO and staff with the Attorney General would be understood within a context of Indigenous cultural norms, which often contains marked differences towards conflict and confrontation, but also in expressing refusal and discontent when dealing with power structures. This was most obviously apparent during the recorded phone call flagged by the Commissioner.

As early as 1976, researchers were able to demonstrate discernible differences in emotive content from speech between Indigenous and non-Indigenous speakers, even when verbal content was digitally removed, based on the tonal aspects alone. Communication styles have continuously been an area of dissatisfaction for Indigenous communities in Canada.

Although the Commissioner refused to entertain any of the Prime Minister’s submissions around supposed personality conflicts and challenges around cooperation and collaboration, this position is insightful into the deeper dynamics at play. The friction likely stemmed in part from perceptions by the Attorney General around what would appear to be favouritism generally towards broader economic interests, and the comparatively less attention provided to Indigenous issues, which she was understandably uniquely preoccupied with as the first Indigenous minister in the role.

In a more homogeneous cabinet the perceptions of conflict and influence would differ significantly, and allowing the Act to apply in this way in a highly subjective manner provides its own ethical dilemmas. The consequence of this would be to encourage future prime ministers to avoid appointing diverse members to this role, given the propensity for misinterpretation and friction. The gendered nature of these power relationships are also worth highlighting. Improper influence necessarily needs a more precise definition than a difference of opinions based on personality conflicts and different cultural or gendered norms.

The Prime Minister has accepted full responsibility for the findings of the Report, even while indicating that he disagreed with the Commissioner’s conclusion that any contact with the Attorney General would be improper. He can be blamed for continuing to exert power from the PMO’s office, as his predecessors have, for failing to enact reforms that would reduce centralization, being overly zealous in protecting Canadian jobs, and for not anticipating how the Act could apply in an entirely new and unusual manner. There is ample room for critique around attempts to “circumvent, undermine and ultimately attempt to discredit” both the Director of Public Prosecutions and the former Attorney General, especially as both of them were well grounded in their positions in law. He could even be faulted for inadequate knowledge of cross-cultural communication and familiarity with Indigenous issues, and he would join the vast majority of Canadians in that failure as well.

The worst finding of the Commissioner though has nothing to do with the relationship with the former Attorney General at all, and has to do with procedural involvement with the judicial review. Though troubling, it hardly rises to the level of national concern that would undermine the public confidence in the administration of justice, as the involvement did not seek to change the actual outcome but to accelerate the proceedings. Yet, the Aug. 15, 2019 letter to the The Standing Committee on Access to Information, Privacy and Ethics claims that the Prime Minister has been “found guilty (sic) of breaking the law, [and] he is a repeat offender…”

Meanwhile, the actual Trudeau II Report makes no finding of guilt, and instead found a contravention of the Act. Like the Oliphant Commission, that is not the focus of the Report, a distinction that may be lost at the upcoming Aug. 21, 2019 hearing. This contravention occurred in a relatively minor manner as compared to the other provisions the Act focuses on, such as receiving gifts, soliciting funds for fundraising, entering into prohibited contracts, accepting improper trips or travel, or use of insider information.

A better characterization of the Report can be found in the comments by The Standing Committee on Procedure and House Affairs,

It should be kept in mind that the Ethics Commissioner does not make final decisions; he or she makes recommendations to the House, which is the final arbiter. If the House disagrees with a recommendation of the Ethics Commissioner following an inquiry, it can refuse to implement the recommendation or can send the report back with directions.

What the Trudeau II report does not reveal is the type of supposed scandal that gave rise to the creation of the office of the Conflict of Interest and Ethics Commissioner with the Gomery Commission. Instead, those interested in principles above politics should heed the lessons on how the appearance of controversy is used for purely partisan purposes. It is not the type of finding of an ethical lapse that should have the type of political controversy that partisan commentators or uninformed observers would like for it to have, but the nature of political commentary leading up to an election gives rise to exactly this type of narrative.

While judicial review of apprehension of bias is unlikely for the Trudeau II Report given the complete absence of controversial public statements by the Commissioner, the significance of the Report should be distinguished from an inquiry or inquest, which investigate and examine matters that implicate public policy or public concern at a far deeper level.

A more useful response to the Report should be to call on all parties to consider the types of changes already undertaken to the Westminster model in other Commonwealth jurisdictions, and ensure that all subsequent holders of these offices better balance the appropriate interests at stake. Even on a generous reading, it does suggest considerable room for the improvement in the operations of governance, but the solutions to these failings involve providing greater clarity around the expectations of the roles within cabinet and scrutinizing and improving our governmental institutions.

To expect otherwise would be to judge the PMO by a standard of conflict not made known until the Report was provided, and developing a standard after the complained conduct has already occurred. This would be unfair for the Prime Minister, but even more unfair to Canadians.

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