National Post (National Edition)
Ethics czar gave bad advice
Dawson partly to blame for Morneau mess
For weeks, through the daily pounding in question period, Justin Trudeau and Bill Morneau have clung grimly to the same lifeline: The finance minister was just following the advice of the ethics commissioner.
No matter what the question — Why did the minister fail to divest his shares in Morneau Shepell? Why did he allow everyone to believe he had for two years? Did he recuse himself from discussions on Bill C-27, pension legislation that would potentially benefit Morneau Shepell? Why did he not report publicly on the two occasions when he says he did recuse himself, as the law requires? — the answer is always the same:
“The minister of finance worked with the ethics commissioner to ensure that he was following all the rules and laws … Everyone on this side of the House works with the ethics commissioner. We comply with the ethics commissioner’s decisions and advice … The finance minister worked with the ethics commissioner and followed her advice ...”
Lest that sound like they were blaming the ethics commissioner, Mary Dawson, for the fix Morneau now finds himself in, the ministers have been quick to turn the double play. By questioning Morneau’s conduct, they charge, opposition critics are really questioning the judgment of the ethics commissioner.
Decrying the Conservatives’ “thinly veiled attacks on the quality of work done by the ethics commissioner,” the prime minister has noted that “on this side of the House, we support and honour the work done by the conflict of interest and ethics commissioner … We will continue to demonstrate our faith in the commissioner … Day after day I stand up and defend the ethics commissioner.”
Of late the prime minister has broadened it out. What is at stake, he suggests, is not just respect for the ethics commissioner, but all the independent officers of Parliament — even Parliament itself. “The personal and nasty attacks by the members opposite,” he laments, are an effort to “lower Canadians’ confidence in our institutions … We are going to keep working with the conflict of interest and ethics commissioner and with all commissioners here in Parliament to make sure that we respect and defend the institutions of this House.”
The amazing thing about this charade is it seems to be working. Opposition leaders have been scrupulous to assure everyone that they have the utmost respect for the ethics commissioner. “We rely on the ethics commissioner to do her job,” Andrew Scheer told the Commons. “The only people in this House right now who do not respect the work of the ethics commissioner are the ministers of the Crown …”
This will not wash. If the ethics commissioner had done her job, we wouldn’t be in this mess. The plain fact is that, in telling Morneau he did not need to divest his shares, she gave him terrible advice. That he should have had enough common sense not to follow it does not absolve her of her responsibility for offering it.
Ethics specialists I’ve consulted are at a loss to explain her decisions. The “loophole” she has identified in the Conflict of Interest Act, which supposedly allows a minister to hold assets he would otherwise be forbidden to hold by the simple expedient of placing them inside a private corporation, is nowhere mentioned in the Act. It seems to be her own personal interpretation of it.
“It is simply ridiculous for the ethics commissioner to say that when you own a holding company that owns shares you don’t control those shares,” says Duff Conacher of the ethics in government watchdog Democracy Watch. “There is no loophole — everyone should stop believing the ethics commissioner without checking whether what she claims is connected to reality.”
The “screen,” likewise, while not her invention, is the sort of discretionary measure the commissioner might propose in addition to statutory obligations, not as a replacement for them. Under section 29 of the Conflict of Interest Act, the commissioner has broad powers to “determine the appropriate measures by which a public office holder shall comply with this Act.” Section 30 further stipulates that “in addition to the specific compliance measures provided for in this Part, the commissioner may order a public office holder, in respect of any matter, to take any compliance measure, including divestment or recusal, that the commissioner determines is necessary to comply with this Act.”
As Conacher explains, when former ethics commissioner Bernard Shapiro first recommended the use of screens, it was in the absence of any legal requirement for recusal, of the kind later legislated under the 2006 Act. Not only is recusal now required in cases of conflict of interest — conflicts, that is, not resolved by divestment — but so is public disclosure of each such case. Yet Morneau was required neither to divest, nor (in the case of C-27) to recuse, nor to disclose.
Indeed, as Andrew Stark of the University of Toronto’s Rotman School asks, “if an indirectly held, publicly-traded asset does not pose a conflict of interest, as Morneau and Dawson both say … why the screen?” That one was imposed was “an acknowledgment that the shares did pose a conflict.” Yet, far from resolving the conflict, the screen seems mostly to have facilitated it.
In fairness, Stark acknowledges, whether the “indirectly held” loophole exists in law, rather than Dawson’s imagination, “is arguable, and only a court would settle it.” Fine. That still does not explain why the ethics commissioner sees her job as counselling ministers on how they can stay just onside of the law — they have lawyers for that sort of thing — rather than how to arrange their private affairs, as the prime minister’s mandate letter instructed, “in a manner that will bear the closest public scrutiny.”